HomeMy WebLinkAbout10-38061,
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IN THE COURT OF COMMON PLEAS OF THc PP';)7'?q'D `ICAAPY
CUMBERLAND COUNTY, PENNSYLVANIA 2010 JUN _8 AM 1:46
UNTY
COMMONWEALTH OF PENNSYLVANIA PENNSYEVX"j,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION
Plaintiff
V.
WES TATE, Date Entered:
Defendant
CERTIFIED COPY OF JUDGMENT
To the Prothonotary:
Pursuant to Section 605 of the Clean Streams Law, Act of June 22, 1937, P.L.
1987, as amended, 35 P.S. § 691.605 ("Clean Streams Law"), this is a Certified Copy of
Judgment for civil penalties to be entered of record by you and indexed as Judgments are
indexed.
Date of Final Amount of Amount Paid
Assessment Assessment if any) Total Due
January 18, 2007 $4,000.00 0 $4,000.00
Total $4,000.00
Filing Fee $
The undersigned certifies that the above civil penalties are due and payable by the
above defendant under the provisions of the Clean Streams Law, pursuant to Section 605
of said law, 35 P.S. § 691.605, a copy of said assessment is attached hereto and made a
part hereof. The above civil penalties shall constitute a Judgment in favor of the
Commonwealth upon the property, or such person from the date entered and docketed of
record.
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Date Xames. Spontak
Regional Manager
Water Management Program
ORIGINAL TO BE RETAINED BY PROTHONOTARY
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COMMONWEALTH OF PENNSYLVANIA n 4
DEPARTMENT OF ENVIRONMENTAL PROTECTION
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In the Matter of: -r =
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Wes Tate EHB Docket No. 2008-332-C
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598 Zion Road
Carlisle, PA 17015 ? ^•
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CONSENT ASSESSMENT OF CIVIL PENALTY
This Consent Assessment of Civil Penalty ("CACP") is entered into this 97/day of
r 2009, by and between the Commonwealth of Pennsylvania, Department of
Environmental Protection (Department) and Wesley A. Tate (Tate).
FINDINGS
The Department has found the following:
A. The Department is the agency with the duty and authority to administer and
enforce the Clean Streams Law (CSL), Act of lone 22, 1937, P.L. 1987, as amended, 35 P.S.
Section 691.1 et seq.; the Dam Safety and Encroachments Act (DSEA), Act of November 26,
1978, P.L. 1375, as amended, 32 P.S. Section 693.1 et seq.; Section 1917-A of the
Administrative Code of 1929 (Administrative Code), Act of April 9, 1929, P.L. 177, as amended,
71 P.S. Section 510-17; and the rules and regulation published under the CSL, the DSEA, and the
Administrative Code.
B. Tate is an individual and maintains a mailing address of 598 Zion Road, Carlisle,
Pennsylvania 17015. Tate contracted for Kate Shover (Shover) at Shover's property (Site), 124
Ladnor Lane, South Middleton Township, Cumberland County, Pennsylvania.
C. The receiving water for the Site is Mountain Creek. The fishery classification in
25 Pa. Code Section 93.9o for Mountain Creek is Trout Stocked Fishery (TSF).
D. The Department has documented the following violations at the Site:
1. A Site inspection by the Department on November 30, 2007, determined
that Tate installed five sets of gabion baskets along the bank of Mountain
Creek and placed fill material behind and above the gabion baskets,
creating a levee without obtaining the required Water Obstruction and
Encroachment Permit. Construction of a levee -without obtaining a Water
Obstruction and Encroachment Permit is a violation of 25 Pa. Code
Section 105.11 and Section 6- of the DSEA, 32 P.S. Section 693.6, and is
unlawful conduct under Section 18 of the DSEA, 32 P.S. Section 693.18,
and Sections 402 and 611 of the CSL, 35 P.S. Sections 691.402 and
691.611.
2. On April 23, 2008, the Department issued an Order (April Order)
requiring, among other things, that Tate remove the gabion baskets and
restore the stream within 30 days. On May 29, 2008, Tate appealed the
April Order. On October 22, 2008, Tate withdrew the appeal of the April
Order. Despite being provided with additional time and numerous
communications with the Department, Tate has started, but not completed,
removal of the gabion baskets and restoration of the stream. Failure to
comply with an Order of the Department is a violation of Sections 18 and
20 of the DSEA, 32 P.S. Sections 693.18 and 693.20, and Sections 402
and 611 of the CSL, 35 P.S. Sections 691.402 and 691.611.
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3. On October 27, 2008, Department staff visited the Site and documented
that work had not been completed under the Corrective Action Plan (CAP)
received by the Department on July 18, 2008, and approved by the
Department on July 25, 2008. Specifically, no work had been done to Area
One and an additional 1 foot of material still needed to be removed from
the area between the stream and a line parallel to the stream 30 feet east of
the stream at Area Five. It was also documented that the gabion basket
material and soil were placed in the detailed Federal Emergency
Management Agency (FEMA) floodway in all five areas of the Site.
E. The violations described in Paragraph D constitute unlawful conduct under
Section 611 of the CSL, 35 P.S. Section 691.611, and Section 18 of the DSEA, 32 P.S. Section
693.18; constitute a statutory nuisance under Section 601 of the CSL, 35 P.S. Section 691.601;
and subject Tate to civil penalty liability under Section 605 of the CSL, 35 P.S. Section 691.605,
and Section 21 of the DSEA, 32 P.S. Section 693.21.
After complete negotiation of all matters listed in this CACP and on mutual exchange of
promises contained herein, the parties desiring to avoid litigation and intending to be legally
bound, it is hereby ASSESSED by the Department and AGREED to by Tate as follows:
1. Civil Penalty Assessment. In resolution of the Department's claim for civil penalties,
which the Department is authorized to pursue under Section 605 of the CSL, 35 P.S. Section
691.605 the Department assesses a civil penalty of $4000 under the CSL, which Tate agrees to
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2. Civil Penalty Payment. The civil penalty payment of $4,000 must be made by corporate
check or the like, made payable to "Commonwealth of Pennsylvania - Clean Water Fund"
according to the following schedule:
a. $400 due within 30 days after CACP is signed;
b. $300 per month, beginning with the month of November, 2009, for the next 12
months for a total payment of $3,600 to be paid by the 51" day of each month. Payment must be
sent to:
Summer Kunkel
Environmental Protection Compliance Specialist
Department of Environmental Protection
909 ElTnerton Avenue
Harrisburg, PA 17110
3. Findinas.
a. Tate agrees that the findings in Paragraphs A through E are true and, in a matter
involving Tate and the Department, Tate will not challenge the validity of these findings.
b. The parties do not authorize another person to use the findings in this COA in a
matter.
4. Remedies. In the event that Tate fails to make any payment required by this CACP, all
remaining payments shall inunediately become due and payable. In that event, the Department
may pursue any remedy for failure to pay a civil penalty, including an action for breach of
contract or the filing of this CACP as in lien in any county of this Commonwealth.
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may pursue any remedy for failure to pay a civil penalty, including an action for breach of
contract or the filing of this CACP as in lien in any county of this Commonwealth.
5. Reservation of Rights. The Department reserves the right to require an additional measure to
achieve compliance with applicable law. Tate reserves the right to challenge an action that the
Department may take to require the measure.
IN WITNESS WHEREOF, The parties to this CACP have caused this CACP to be
executed by their properly authorized representatives. Tate certifies under penalty of law, as
provided by 18 Pa. C.S. Section 4904, that he may execute this CACP on his behalf and Tate
consents to the entry of this CACP as an ASSESSMENT of the Department; and Tate hereby
knowingly waives his right to appeal this CACP and to challenge its content or validity, rights
that may be available under Section 4 of the Environmental Hearing Board Act, Act of July 13,
1988, P.L. 530, as amended, 35 P.S. Section 7514; the Administrative Agency Law, 2 Pa. C.S.
Section 103(a) and chapters 5A and 7A; or another provision.
FOR TATE:
FOR THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
ENVIRONMENTAL PROTECTION:
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tJ,1nes S. Spontak Date
rogram Manager
Watershed Management
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M. Dukes Pepper, Jr. q. ate
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FILED -C- iF,vr-
OF THE PR01'P-;^N:P0TARY
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVAN1010 JUN _8 APB 11: 4cb
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL
PROTECTION
Plaintiff
V.
WES TATE :
Defendant
GUME? ? 1 t- 4UNFY
PENNuYLVA 1A
Docket No. o , 3 ?,D to o "-l 4ryix
PRAECIPE FOR ENTRY OF APPEARANCE
To the Prothonotary:
Kindly enter my appearance as counsel for the Commonwealth of Pennsylvania,
Department of Environmental Protection, in the above matter. I am authorized to accept
service on behalf of the Department in this matter.
1--pi D ,?
M. Dukes Pepper, Jr.
PA I.D. No. 30140
Attorney for Plaintiff
Commonwealth of Pennsylvania,
Department of Environmental Protection
Southcentral Regional Counsel
909 Elmerton Avenue, Third Floor
Harrisburg, PA 17110
Telephone: (717) 787-8790
Date: 61212 pie)
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL
PROTECTION
V.
Plaintiff
Docket No. J 0- 3 ?? ?i uy 1-f?k
WES TATE Date Entered:
Defendant :
NOTICE OF ENTRY OF JUDGMENT PURSUANT TO RULE 236
To: Wes Tate
598 Zion Road
Carlisle, Pennsylvania 17015
You are hereby notified pursuant to Pa. R. Civ. P. 236 that a judgment has been
entered against you in the above-captioned matter in the amount of $4,000.00.
Date:
avi uell
Prothonotary
Pennsylvania Department of Environmental Protection
OI??jne Office of Chief Counsel
Third Floor
,909 Elmerton Avenue
Harrisburg, Pennsylvania 17110-8200
June 7, 2010
Southcentral Regional Office
Telephone: 717-787-8790
Telecopier: 717-772-2400
David D. Buell, Prothonotary
Cumberland County Courthouse
One Courthouse Sq.
Carlisle, PA 17013-3387
Re: Commonwealth of Pennsylvania Denartment of Environmental Protection v Wes Tate
Dear Mr. Buell:
Please be advised that I represent the Commonwealth of Pennsylvania, Department of
Environmental Protection ("PADEP") in this matter. This judgment is being filed under
Section 605 of the Pennsylvania Clean Streams Law. 35 P.S. Section 691.605. Section 605
authorizes the assessment of a civil penalty for violations of the law and if the person liable
to pay does not do so, the civil penalty becomes a judgment upon the person along with
interest and costs. Section 605 also provides that:
"The department may, at any time, transmit to the prothonotaries
of the respective counties certified copies of all such judgments,
and it shall be the duty of each prothonotary to enter and docket
them of record in his office, and to index the same as judgments
are indexed without requiring the payment of costs as a condition
precedent to the entry thereof."
In this case, Mr. Tate has refused to pay the civil penalty assessed against him
despite the fact that I have demanded payment.
Enclosed please find the following:
1) An original and two (2) copies of a Praecipe for Entry of Appearance;
2) Three (3) originals of a Certified Copy of Judgment for $4,000.00 with attachment;
3) An original and two (2) copies of a Notice of Entry of Judgment Pursuant to Rule 236
for Wes Tate;
4) Filing fees for the above-mentioned documents.
Kindly file the originals and return a date-stamped copy to me in the enclosed self-
addressed, stamped envelope. Please serve one original certified Copy of Judgment and Rule
An Equal Opportunity Employer http://www.dep.state.pa.us Printed on Recycled Paper ?j?
David D. Buell, Prothonotary
June 7, 2010
Page 2
236 Notice on the Defendant. A stamped envelope to the Defendant is enclosed for the
purpose of the Prothonotary serving a Certified Copy of Judgment and Rule 236 Notice.
Thank you for your time and consideration in this matter. If there are any questions,
please do not hesitate to contact me.
Sincerely,
M. Dukes Pepper, r., s .
Assistant Counsel
MDP/lmt
cc: Wes Tate (send via Delivery Confirmation, No. 0306 2400 0002 9935 1570)
Summer Kunkle