Peryea, Michael - Order, December 27, 1994
Order, December 27, 1994
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter
of
the Alleged Violation of Section 71-1305.2 of the New York State Environmental Conservation Law by
Michael Peryea
Respondent
Order of Referral on Default and Summary Report
Case No. R5-0717-89-3
Proceedings
Pursuant to Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York, Section 622.15, the New York State Department of Environmental Conservation ("DEC") Region 5 Staff ("Staff") has moved for a default judgment against Michael Peryea, the Respondent.
Staff made its motion by serving, on or about December 6, 1994, via mail, the above named Respondent with the following papers:
- a Notice of Motion dated November 28, 1994;
- a Motion for Default Judgment dated November 28, 1994;
- an Affidavit of Paul Van Cott, Assistant Regional Attorney, sworn to November 23, 1994, with attached exhibits (consisting of Notice of Hearing and Complaint, Affidavit of Service, certified mail receipt and domestic return receipt, and a letter extending time to answer); and
- a Proposed Order;
and by filing said documents with an affidavit of service of same with the DEC Office of Hearings.
Response to Staff's Motion was due on or before December 17, 1994.
No response to the motion has been received from the Respondent, and the record is closed, as of the date of this Report.
The motion is determined below upon the papers submitted, as identified above.
Findings on the Default
- Staff commenced the above captioned proceeding by serving a Notice of Hearing and Complaint dated August 23, 1994 on Respondent Michael Peryea at Rt. 4, Box 567, Plattsburgh, N.Y. 12901, by certified mail on August 30, 1994 (the date of actual delivery).
- By letter to Respondent dated October 24, 1994, Staff extended the time for Respondent to submit his answer until November 11, 1994.
- Respondent failed to file an answer or otherwise respond to the Notice of Hearing and Complaint.
Default Procedures
Section 622.15, "Default procedures" provides in pertinent part:
"(b) The motion for a default judgment may be made orally on the record or in writing and 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.
"(c) Upon a finding by the ALJ that the requirements of subdivision (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. ..."
Conclusions
The affidavit 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. The requirements of 622.15(b) for a motion for a default judgment have therefore been met.
Order of Referral
This Summary Report and Staff's Proposed Order (attached hereto) are hereby referred to the Commissioner for final determination.
December 22, 1994
Albany, New York
_____________/s/_____________
Frank Montecalvo
Administrative Law Judge
Attachment: Proposed Order
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter
of
the Alleged Violations of Section 71-1305.2 of
the Environmental Conservation Law of the State of New York ("ECL") by:
MICHAEL PERYEA
Respondent.
ORDER
File No. R5-0717-89-3
- Pursuant to a Notice of Hearing and Complaint dated August 23, 1994, DEC Staff commenced an administrative enforcement proceeding against the Respondent, Michael Peryea.
- Service of the Notice of Hearing and Complaint on the Respondent was made by certified mail and was completed on August 30, 1994.
- The Respondent has declined to answer Department Staff's Notice of Hearing and Complaint or to otherwise respond to Department Staff's Notice of Hearing and Complaint.
- With respect to such failure, Department staff made a Motion for Default Judgment, dated November 28, 1994, against 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"), Respondent is found to be in default and as having waived his right to a hearing in this enforcement proceeding and Department staff's allegations against Respondent in its Notice of Hearing and Complaint are deemed to have been admitted by the Respondent.
- The Respondent violated general condition #10 of DEC mining permit #5-092400014/00001-0 and ECL 71-1305.2 by failing to maintain a bond, or other surety, in full force and effect during the entire life of his mining operation.
- The Respondent is in continuing violation of 6 NYCRR 422.3(e) and ECL 71-1305.2 by failing to reclaim his mining site located on the western side of Route 190 near LaPlante Road in the Town of Beekmantown, Clinton County, New York (the "Site"), within a two year period after mining was required to cease there.
NOW, THEREFORE, having considered this matter and being duly advised, it is ORDERED that:
- The Respondent is found to be in violation of ECL 71-1305.2. The Respondent is assessed a civil penalty of ONE THOUSAND DOLLARS ($1,000). Such penalty shall be due and payable thirty (30) days after the service of a conformed copy of this Order on the Respondent.
- The Respondent shall properly reclaim the land affected by Respondent's mining activities at the Site, in accordance with an approved mined land reclamation plan and subject to DEC Staff's review and approval, by no later than December 31, 1995.
- All communications between the Respondent and the Department concerning this Order shall be made to the Regional Director, Department of Environmental Conservation, Region 5, P.O. Box 296, Route 86, Ray Brook, New York 12977.
- The provisions, terms and conditions of this Order shall bind Respondent, its officers, directors, agents, servants, employees, successors and assigns and persons, firms and corporations acting for or on behalf of the Respondent.
_____________/s/_____________
LANGDON MARSH, COMMISSIONER
Dated: Albany, New York
December 27, 1994
To: Michael Peryea
Route 4, Box 567
Plattsburgh, NY 12901
Paul Van Cott, Esq.
NYSDEC - Region 5
P.O. Box 296, Route 86
Ray Brook, NY 12977
