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Waite, Dale - Order, May 13, 1994

Order, May 13, 1994

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations
of Article 24 of the Environmental
Conservation Law (ECL) and Title 6 of the
Official Compilation of Codes, Rules and
Regulations of the State of New York
(6 NYCRR), Part 663, by

DALE WAITE
Pompey (T)
Onondaga County, New York,
Respondent.

ORDER
CASE NO. R7-0762-92-12

WHEREAS:

  1. Pursuant to a notice of hearing and complaint dated March 16, 1994, duly served upon Respondent herein, a pre-hearing conference was held on April 21, 1994. The Department of Environmental Conservation (the "Department") Region 7 staff appeared by Jennifer L. Powell, Assistant Regional Attorney, Region 7. Respondent Dale Waite did not appear, either personnaly or by representative, nor was an answer to the charges filed in his behalf.
  2. Upon reading and filing the notice of motion and motion dated April 28, 1994, the affidavit of Jennifer L. Powell in support of the motion, sworn to on the 28th day of April, 1994, and the notice of hearing and complaint heretofore served herein, with proof of service thereof, I find that the Respondent failed to file a timely answer as required by a 6 NYCRR 622.4(a) and failed to appear at the pre-hearing conference duly scheduled in this case as required by 6 NYCRR 622.8(c) and that the Respondent is therefore in default under the provisions of 6 NYCRR 622.15(a) and has waived his right to a hearing on this matter.
  3. I further find that the Respondent has committed four separate violations of ECL 24-0701 by filling, excavating, and erecting a residence house within a regulated wetland and within 100 feet of a boundary of a regulated wetland; and by polluting a regulated wetland by installing and using a septic system which discharges in the regulated wetland or into the adjacent area thereof from the residence house or by running a sewer outfall and discharging sewage into the regulated wetland or into the adjacent area thereof from the residence house; which fill, excavation, erection of a structure, and pollution impinged upon the wetland and were all undertaken without ECL Article 24 permits to do so from the Department.

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

  1. Respondent Dale Waite is hereby assessed a civil penalty of $12,000.00 for the violations described above.
  2. Respondent Dale Waite is hereby directed to remediate the damage caused by the violations described above as follows:
    1. Respondent shall immediately cease conducting any regulated activity, except as mandated by this Order, in or within 100 feet of the boundary of Freshwater Wetland DER-1, unless such activity is authorized by a valid ECL Article 24 permit issued by the Department.
    2. Within 30 days after receipt of this Order, Respondent shall completely remove all fill, as described in paragraph 5 of the complaint, except for the house and the fill thereunder, down to the level of the organic layer as it existed before Respondent placed the fill; which removal shall be to the satisfaction of Department staff.
    3. By the same date, Respondent shall dispose of the removed fill either at an on-site, upland location acceptable to Department staff or at an off-site location where disposal of such material is not prohibited and which is otherwise acceptable to Department staff.
    4. Immediately after removal and disposal of the subject fill, Respondent shall grade, seed, and stabilize the affected areas to the satisfaction of Department staff, to prevent further erosion into the wetland, and shall maintain the resulting vegetation growth until it becomes self-sustaining.
    5. Within 30 days after receipt of this Order, Respondent shall submit site plans certified by a professional engineer licensed by the State of New York, showing the location of all structures at the site. The plans shall also show the locations of any septic system and well (or other water supply) at the site and shall include certified design plans and copies of any and all local government approvals for the septic system and a detailed description of the type of well, its depth, and the name and address of the contractor who installed the well.
    6. If there is no existing functional septic system at the site, Respondent shall, within 30 days after receipt of the Order, submit to the Department a complete application for an ECL Article 24 permit to authorize the installation of a septic system appropriate for the site. Such application shall include a certified site plan showing all existing structures at the site and "approvable" design and location plans for a proposed septic system, along with copies of all necessary local government approvals. The application shall also include a proposed schedule for installation of the septic system. After issuance of an ECL Article 24 permit by the Department to Respondent, and in accordance with the conditions of that permit, Respondent shall install the septic system as approved.
    7. "Approvable" within the context of this Order shall mean capable of being approved by the Department with only minimal revision. Minimal revision shall mean revised and resubmitted to the Department within fifteen (15) days after notification by the Department of revisions that are necessary.
    8. The terms of this Order do not release Respondent from his obligation to obtain applicable state and local approvals for any construction work to be undertaken at the site pursuant to the terms of this Order.
    9. For the purpose of ensuring compliance with this Order and with applicalbe provisions of the ECL and regulations promulgated thereunder, representatives of the Department shall be permitted access to the site in order to perform such inspections and tests as the Department may deem appropriate to determine the status of Respondent's compliance.
  3. All communications between the Respondent and the Department concerning this Order shall be made to the Director, New York State Department of Environmental Conservation, Region 7 Headquarters, 615 Erie Boulevard West, Syracuse, New York 13204-2400.
  4. The provisions, terms, and conditions of this Order shall bind the Respondent, his agents, servants, employees, successors, and assigns, and all persons, firms, and corporations for or on behalf of the Respondent.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
LANGDON MARSH, ACTING COMMISSIONER
___________/s/____________

DATED: Albany, New York
May 13, 1994

To: Dale Waite
214 Swamp Road
Fabius, New York 13063

Ralph A. Cognetti, Esq.
309 South Franklin Street
Syracuse, New York 13202

Jennifer L. Powell, Assistant Regional Attorney
New York State Department of Environmental Conservation
Region 7 Headquarters
615 Erie Boulevard West
Syracuse, New York 13204-2400

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of the Environmental Conservation Law ("ECL")
Article 24 and of Title 6 of the Official Compilation of Codes, Rules and
Regulations of the State of New York ("6 NYCRR") Part 663 by

DALE WAITE
Pompey, New York

Respondent

DEFAULT SUMMARY
REPORT
Case #R7-0762-92-12

Proceedings

The Region 7 Staff of the New York State Department of Environmental Conservation served a Notice of Hearing and Complaint on the Respondent, Dale Waite, by certified mail at his last known address on March 17, 1994. The Staff also simultaneously served the Respondent's attorney, Ralph A. Cognetti, by certified mail. The Respondent did not file an answer or appear for the pre-hearing conference scheduled for April 21, 1994 in the Notice.

The Department Staff has submitted an affidavit of the Staff's Assistant Regional Attorney for Region 7, Jennifer Powell, with attached exhibits, including the Notice of Hearing and Complaint, affidavits of service and the certified mail return receipts.

These documents were received in the Office of Hearings on May 2, 1994. Respondent's attorney, Ralph A. Cognetti, submitted a letter dated May 3, 1994 in response. The record of the proceeding closed when Mr. Cognetti's letter was received in the Office of Hearings on May 5, 1994.

Findings and Conclusion

The affidavits and exhibits submitted by the Department Staff in support of its motion for a default judgment provide proof of proper service of the Notice of Hearing and Complaint, and proof that the Respondent defaulted. Staff also submitted a proposed order. These documents adequately meet the requirements of 6 NYCRR 622.15(b) for a motion for a default judgment.

The Respondent's attorney's letter of May 3, 1994 admits he failed to answer the complaint or appear for the pre-hearing conference, while offering an excuse based on law office failure. The Respondent also indicates its position that the relief sought by Staff is disproportionate to the alleged violation. The Respondent's letter does not challenge Staff's proof of service on Respondent or dispute that the default occurred.

Under 6 NYCRR 622.15, the ALJ's review of a motion for a default judgment is limited to the circumstances of the default itself. The default must be granted if, upon the papers submitted, it is established that the respondent was properly served and failed to appear or answer. The papers submitted in this proceeding establish that Respondent defaulted.

Attached to this report is the Department Staff's proposed order.

/s/
Andrew S. Pearlstein
Administrative Law Judge

Dated: May 11, 1994
Albany, New York

Attachment

To: Dale Waite
214 Swamp Road
Fabius, New York 13063

Ralph A. Cognetti, Esq.
309 South Franklin Street
Syracuse, New York 13202

Jennifer L. Powell, Esq.
Assistant Regional Attorney
NYSDEC Region 7
615 Erie Boulevard West
Syracuse, New York 13204-2400

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