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VanVorst, Adam - Order, August 20, 1998

Order, August 20, 1998

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of
the Alleged Violation of Article 17 of the
Environmental Conservation Law and Article 12 of the Navigation Law
of the State of New York and 6 NYCRR Parts 703 and 612
et seq,
ORDER

DEC File No. R4-1760-94-09

- by -

Adam Van Vorst,

Respondent.

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated February 25, 1998, New York State Department of Environmental Conservation (DEC) Region 4 staff commenced an administrative enforcement proceeding against the Respondent.
  2. Respondent was served with the Notice of Hearing and Complaint on February 26, 1998 by certified mail.
  3. Service of process was accomplished in accordance with 6 NYCRR §622.3(a)(3).
  4. The time for Respondent to serve an Answer expired March 18, 1998 and was extended until April 10, 1998. Respondent failed to serve an Answer to Department staff's Complaint within that time, or since.
  5. With respect to such failure to answer, DEC staff made a Motion for Default Judgment dated May 27, 1998.
  6. I adopt the findings of the Administrative Law Judge's report which is attached hereto.
  7. 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 as having waived his right to a hearing in this enforcement proceeding. Accordingly, Department staff's allegations against Respondent in its Complaint are deemed to have been admitted by Respondent.
  8. The Respondent violated ECL §17-0501 and 6 NYCRR §§612.2, 613.9 and 703.5 and Navigation Law §176 by failing to register the tanks on his property, remove all underground storage tanks on the property, remove all contaminated soil on the property and address the groundwater contamination at the site.
  9. Respondent's violations of ECL §17-0501 and 6 NYCRR §§612.2, 613.9 and 703.5 and Navigation Law §176 are continuing violations for each day in which Respondent fails to halt the contamination of the soil and groundwater with petroleum.

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

  1. Respondent shall pay a civil penalty of $500. I will not impose a larger penalty in this case because the current owner of the site was not responsible for placing the contamination on the site and did not know the extent of the site contamination when he purchased the property;
  2. Within 10 days of the effective date of the Commissioner's Order, Respondent shall register the tanks on his property located at 183 Second Avenue, Albany, New York ("site"). Even though I am also requiring that the tanks on site be removed, this registration is necessary in order for staff to keep accurate records of tank location and ownership;
  3. Within 30 days of the effective date of the Commissioner's Order, Respondent shall remove all underground gasoline storage tanks from the site. Respondent shall use standard engineering practice to locate the tanks on site. Respondent shall notify the Department at least 3 days in advance of the tank removal and arrange for Department staff to be present at the removal;
  4. Respondent shall remove and dispose of all contaminated soil encountered during the tank removal activities in accordance with the requirements of 6 NYCRR Part 360;
  5. Respondent shall sample monitoring well MW-1, MW-2, MW-3 and MW-5 on a quarterly basis for at least one year after demonstrating that the groundwater at these wells meets State groundwater standards in 6 NYCRR §703.5 or an alternative acceptable to Department staff. If accumulated quarterly sampling results continue to indicate groundwater contamination, Respondent will be responsible for submitting a remedial plan to address the contamination; and
  6. All communications between Respondent and Staff concerning this Order shall be made to the Regional Director, NYS Department of Environmental Conservation, Region 4, 1150 North Westcott Road, Schenectady, New York 12306.
  7. The provisions, terms and conditions of this Order shall bind Respondent, his 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

Albany, NY
August 20, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of
Alleged Violation of Article 17 of the Environmental Conservation Law,
Article 12 of the Navigation Law and Parts 703 and 612 et seq.
of the Official Compilation of Codes, Rules and Regulations of the State of New York by

DEFAULT
SUMMARY REPORT

File No. R4-1760-94-09

Adam Van Vorst,

Respondent

Summary

The present report concerns a motion for a default judgment which the Region 4 Staff of the Department of Environmental Conservation (the "Department Staff") served in the matter of Adam Van Vorst (the "Respondent") 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"). The report recommends that the motion be granted.

Proceedings

On February 25, 1998, the Department Staff sent a Notice of Hearing and Complaint to the Respondent. The Complaint alleged that the Respondent had violated 6 NYCRR Parts 612 and 613 (Registration of Petroleum Storage Facilities; Handling and Storage of Petroleum), 6 NYCRR Part 703 (Surface Water and Groundwater Quality Standards and Groundwater Effluent Standards), Environmental Conservation Law ("ECL") Article 17 (Water Pollution Control) and Navigation Law Section 176 (Removal of Prohibited Discharges). The site of the alleged violations is property at 183 Second Avenue, Albany, New York.

The Notice of Hearing and Complaint were sent by certified mail, return receipt requested. The return receipt, with the signature of Tonia Van Vorst dated February 26, 1998, was returned to the Department's Region 4 office.

The Notice of Hearing required attendance at a pre-hearing conference on March 10, 1998. The Respondent appeared at the scheduled pre-hearing conference and discussed with the Department Staff the possibility of settling the case. The Department Staff agreed to postpone proceeding with the case while awaiting information from the Respondent that was due on April 10, 1998. Ann Lapinski, Esq., Assistant Regional Attorney in Region 4, sent a letter to the Respondent on March 16, 1998 which documented this one-month postponement, and which stated that if the matter was not resolved, she would proceed with the hearing process.

The Department Staff has received nothing further from the Respondent, including no Answer to the Complaint.

On May 27, 1998, the Department Staff moved for a default judgment based on the Respondent's failure to answer the Complaint. The motion was sent to the Office of Hearings and Mediation Services of the Department of Environmental Conservation, with a copy sent to the Respondent. As of June 29, 1998, the Office of Hearings and Mediation Services has not received any response from the Respondent concerning the motion for a default judgment, nor a copy of an Answer.

Discussion

The procedures for a default judgment are provided in 6 NYCRR Section 622.15. The regulation provides that a respondent's failure to file a timely answer constitutes a default and a waiver of the respondent's right to a hearing. In this event, the Department Staff may make a motion to the Administrative Law Judge ("ALJ") for a default judgment. Failure to appear at a hearing or at a scheduled pre-hearing conference also constitute defaults, although those circumstances are not under consideration in the present case.

6 NYCRR 622.15(b) requires that a motion for default judgment 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. The regulation further provides that upon a finding by the ALJ that the requirements of subdivision 622.15(b) 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.

In the present case, the Department Staff has submitted an affidavit by Ms. Lapinski which proves that the Notice of Hearing and Complaint were served upon the Respondent on February 26, 1998.

The affidavit also proves that the Respondent failed to file a timely answer. The Notice of Hearing informed the Respondent that failure to answer would constitute a default and would result in waiver of the right to be heard in the matter. The Notice of Hearing directed that the Respondent file an answer with the Department by 20 days from receipt of the complaint, which would have been March 18, 1998. The Respondent neither filed an answer nor provided the information discussed in the March 16, 1998 letter. No answer has been submitted following the motion for a default judgment.

The Department Staff submitted a proposed order with the motion for a default judgment.

Thus, the requirements of 6 NYCRR 622.15(b) have been met with respect to the motion for a default judgment in this matter. In accordance with 6 NYCRR 622.15(c), this summary report, which is limited to a description of the circumstances of the default, will be submitted to the Commissioner accompanied by a proposed order.

Recommendation

The Commissioner should grant the default judgment requested by the Department Staff in this matter.

/s/
Susan J. DuBois
Administrative Law Judge

Albany, New York

Attachment

TO: Adam Van Vorst
183 Second Avenue
Albany, New York 12202

Ann Lapinski, Esq.
NYS Department of Environmental
Conservation, Region 4
1150 North Westcott Road
Schenectady, New York 12306

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