Thomas O. Rasey Farms - Order, May 1, 2003

Order, May 1, 2003

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 23 of the Environmental Conservation
Law of the State of New York and Part 551 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York.

-- By --

Thomas O. Rasey Farms,
Respondent.

ORDER

Case No. D9-1029-0111

WHEREAS:

1. 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) Staff of the New York State Department of Environmental Conservation (DEC Staff) duly served a Notice of Hearing and Complaint upon the Respondent, Thomas O. Rasey Farms, by certified mail.
2. The Notice of Hearing included a statement that, pursuant to 6 NYCRR 622.15, failure to timely answer, failure to attend a hearing, or failure to attend a pre-hearing conference would result in a default under 6 NYCRR 622.15 and a waiver of Respondent's right to a hearing.
3. The affidavit of DEC Staff member Marina Feldman states that the Respondent was served by placing a true and correct copy of the Notice of Hearing and Complaint in a secure postpaid wrapper addressed to the Respondent and mailed to Respondent by certified mail return receipt requested. The associated return receipt indicates that the Notice of Hearing and Complaint were received on November 14, 2002.
4. In the Complaint dated November 4, 2002, DEC Staff alleged three causes of action against Thomas O. Rasey Farms for violations alleged to involve twelve oil and/or gas wells known as:
   1. Smith #1 (API Well #31-009-66974-00-00)
   2. Smith #3 (API Well #31-009-66976-00-00)
   3. Smith #4 (API Well #31-009-66977-00-00)
   4. Smith #5 (API Well #31-009-66978-00-00)
   5. Smith #6 (API Well #31-009-66979-00-00)
   6. Mohr #1 (API Well #31-009-66980-00-00)
   7. Mohr #2 (API Well #31-009-66981-00-00)
   8. Mohr #3 (API Well #31-009-66982-00-00)
   9. Mohr #4 (API Well #31-009-66983-00-00)
   10. Mohr #5 (API Well #31-009-66984-00-00)
   11. Mohr #6 (API Well #31-009-66985-00-00)
   12. Mohr #7 (API Well #31-009-66986-00-00)

   The three causes of action allege that Respondent failed to submit an Annual Well Report for the years 1999, 2000 and 2001 in violation of §23-0305(8)(f) of the Environmental Conservation Law ("ECL") and §551.2 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR").

5. Staff documents by affirmation of Richard A. Sherman, Esq. that:
   1. Respondent failed to serve on the Department an answer within 20 days of its receipt of the notice of hearing and complaint or in an otherwise timely manner;
   2. the penalty imposed is consistent with that sought in the complaint and not inconsistent with applicable law; and
   3. failure to answer a complaint and appear at the scheduled pre-hearing conference are both grounds for a default judgment pursuant to 6 NYCRR 622.15.

   Accordingly, Department Staff's allegations against Respondent in its complaint are deemed to have been admitted by Respondent.

6. A copy of the notice of motion and supporting papers seeking the judgment by default were filed with the Office of Hearings and Mediation Services, and the matter was assigned to Administrative Law Judge (ALJ) P. Nicholas Garlick. A copy of the ALJ's Default Summary Report is attached. I adopt the ALJ's report.

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

1. Pursuant to 6 NYCRR 622.15, Respondent is found to have violated 6 NYCRR 551.2 and ECL §23-0305(8)(f) and is found to have defaulted in answering the Notice of Hearing and Complaint and to have waived its right to a hearing in this proceeding.
2. Respondent, Thomas O. Rasey Farms, shall be liable for a penalty of Three Thousand Two Hundred and Thirty-Eight dollars ($3,238) for the violations alleged in the complaint. One Thousand Two Hundred and Thirty-Eight Dollars ($1,238.00) shall be suspended provided the Respondent provides the following within 30 days of receipt of this Order:
   1. An Annual Well Report for calendar year 1999;
   2. An Annual Well Report for calendar year 2000; and
   3. An Annual Well Report for calendar year 2001.

   The remaining amount of the penalty, Two Thousand dollars ($2,000.00) shall be paid within 30 days of service of this Order to the New York State Department of Environmental Conservation. Should Respondent fail to provide any of the three (3) items listed above with 30 days, the suspended portion of the penalty shall become immediately due and payable.

   Payment of this penalty shall be by cashier's check, certified check or Money Order drawn to the order of "NYSDEC" and delivered to the Department's Office of General Counsel, NYS DEC Headquarters, 625 Broadway, New York, 12233-5500, Attention: Richard A. Sherman, Esq.

3. All communications from Respondent to the Department concerning this order, including the payment of the penalty, shall be made to: Richard A. Sherman, Esq., NYS DEC Headquarters, 625 Broadway, New York, 12233-5500.
4. The provisions, terms and conditions of this order shall bind the Respondent, its agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation
____________/s/____________
By: Erin M. Crotty
Commissioner

Dated: Albany, New York
May 1, 2003

To: Richard Sherman, Esq.
NYS DEC
625 Broadway, 14th Floor
Albany, N.Y. 12233-5500

Thomas O. Rasey Farms
1638 Four Mile Road
Allegany, NY 14706

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 23 of the Environmental Conservation
Law of the State of New York and Part 551 of Title 6 of the Official
Compilation of Codes, Rules and Regulations of the State of New York.

-- by --

Thomas O. Rasey Farms,

Respondent.

SUMMARY REPORT

Case No. D9-1029-0111

PROCEEDINGS

By a Notice of Hearing and Complaint dated November 4, 2002, Staff of the Department of Environmental Conservation ("DEC Staff") alleged three causes of action against Thomas O. Rasey Farms ("Respondent") for violations relating to the twelve oil and/or gas wells known as:

II Smith #1 (API Well #31-009-66974-00-00)
II Smith #3 (API Well #31-009-66976-00-00)
II Smith #4 (API Well #31-009-66977-00-00)
II Smith #5 (API Well #31-009-66978-00-00)
II Smith #6 (API Well #31-009-66979-00-00)
II Mohr #1 (API Well #31-009-66980-00-00)
II Mohr #2 (API Well #31-009-66981-00-00)
II Mohr #3 (API Well #31-009-66982-00-00)
II Mohr #4 (API Well #31-009-66983-00-00)
II Mohr #5 (API Well #31-009-66984-00-00)
II Mohr #6 (API Well #31-009-66985-00-00)
II Mohr #7 (API Well #31-009-66986-00-00)

The three causes of action allege that the Respondent failed to submit an Annual Well Report for the years 1999, 2000 and 2001 in violation of §23-0305(8)(f) of the Environmental Conservation Law ("ECL") and §551.2 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR").

By motion dated March 17, 2003, DEC Staff sought a judgment by default against the Respondent concerning the alleged violations. In support of its motion, DEC Staff submitted an affirmation of DEC Staff Attorney Richard A. Sherman, Esq., a proposed Order, and an affidavit of service of the Notice of Hearing and Complaint on the Respondents, by DEC Staff member Marina Feldman. The Notice of Hearing and Complaint were received at the Respondent at its place of business on November 14, 2002 and signed for by Wendy Rasey (U.S.P.S. Article Number 7000 1670 0007 7775 9216).

To date, the Respondents have failed to serve an Answer or otherwise move, although the time to do so expired on or about December 5, 2002.

The Notice of Motion for Default Judgment and supporting papers were mailed to the Respondents on or about March 17, 2003. Respondents have not opposed the motion.

DEFAULT PROCEDURES

Section 622.15, "Default Procedures" provides, in pertinent part: (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."

The following Findings are based upon the papers submitted, as identified above.

FINDINGS OF FACT

1. On or about November 14, 2002, DEC Staff served a Notice of Hearing and Complaint on Respondent, Thomas O. Rasey Farms. The time to Answer or otherwise move expired on or about December 5, 2002. No Answer has been served to date.
2. Staff served the motion for default judgment and supporting papers on Respondent on or about March 17, 2003. Respondent has not opposed said motion.
3. The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR section 622.15(b).

RECOMMENDATION

The motion for default judgment should be granted. This Default Summary Report and Staff's proposed Order (attached hereto) are referred to the Commissioner for final determination.

___________/s/____________
P. Nicholas Garlick
Administrative Law Judge

To: Richard Sherman, Esq.
NYS DEC
625 Broadway, 14th Floor
Albany, N.Y. 12233-5500

Thomas O. Rasey Farms
1638 Four Mile Road
Allegany, NY 14706

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