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690 Riverside Drive Aldo Assoc., LLC - Order, October 12, 2000

Order, October 12, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 17 of
the Environmental Conservation Law of the State of New York and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

690 RIVERSIDE DRIVE ALDO ASSOC LLC,

Respondent.

ORDER

Case No. 2-091383

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 duly served a Notice of Hearing and Complaint upon the Respondent, 690 RIVERSIDE DRIVE ALDO ASSOC LLC, by certified mail, return receipt requested. The affidavit of SCOTT W. OWENS 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 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 by Respondent on March 15, 2000.
  2. The Complaint asserted one cause of action, that the Respondent has failed to conduct tank tightness and connecting pipe system testing and to submit the results of such test(s) for the petroleum bulk storage tanks located at the Respondents's facility located at 690 RIVERSIDE DRIVE (PBS#2-091383) to the Department in accordance with the requirements set forth in 6 NYCRR Part 613. Said testing results were due in December 1987 and every five (5) years thereafter for the tank(s) specified in the complaint. Respondent has failed to voluntarily comply or submit clear evidence that its facility is in compliance. Respondent is in violation of Article 17-1005 and 6NYCRR §613.5.
  3. The Notice of Hearing and Complaint stated that a pre-hearing conference was scheduled to take place on APRIL 25, 2000 at 11:00 AM at the Region 2 Office of the NYS Department of Environmental Conservation, located at One Hunters Point Plaza, 47-40 21st Street, Long Island City, New York 11101-5407. The Notice included a statement that, pursuant to 6 NYCRR §622.15, a failure to timely answer or 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. Respondent failed to serve an answer and failed to appear at the pre-hearing conference. Accordingly, Department Staff's allegations against Respondent in its Complaint are deemed to have been admitted by the Respondent

    Staff documents by affirmation of Benjamin A. Conlon that:

    1. Respondent failed to appear at the pre-hearing conference;
    2. 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;
    3. the penalty imposed is appropriate based on the violations and the duration of the violations; and
    4. failure to answer a complaint and to appear at a pre-hearing conference are both grounds for a default judgment pursuant to 6 NYCRR §622.15.
  4. A copy of the motion and supporting papers were filed with the Office of Hearings and Mediation Services and the matter was assigned to Administrative Law Judge Molly T. McBride. No answer was served in response to the complaint and the Respondent failed to appear at the pre-hearing conference. The failure to appear in the action and/or at the pre-hearing conference constitutes a default and a waiver of the Respondent's right to a hearing pursuant to 6 NYCRR 622.15. Submitted herewith is a copy of the Default Summary Report (attached). I adopt the ALJ's report.

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

  1. Pursuant to 6 NYCRR §622.15, Respondent is found to be in default.
  2. Respondent, 690 RIVERSIDE DRIVE ALDO ASSOC LLC, shall pay a civil penalty of Ten Thousand ($10,000.00) dollars within 30 days of service of this Order to the New York State Department of Environmental Conservation, 50 Wolf Road, Room 410A, Albany, New York 12233-5550 for the violations asserted in the complaint.
  3. Within thirty (30) days of service of the Order, Respondent shall either: (1) conduct tightness testing on each of the indicated tanks and connecting systems at the facility located at 690 RIVERSIDE DRIVE in accordance with 6 NYCRR 613.5; or (2) permanently close the indicated tanks and connecting piping systems in accordance with 6 NYCRR 613.9 (b),(c),(d) and (e);
  4. The Respondent shall notify the Department five (5) business days in advance of conducting a tank tightness test;
  5. A test report containing the results of such test(s) shall be submitted to the Department within (15) days of the completion of such test(s). In the event that a tightness test reveals that a tank is not tight, that portion of the facility which failed the test must be promptly repaired, replaced, or closed in accordance with 6 NYCRR 613.5(a)(5). Additionally, if such test(s) reveals that a tank is leaking, such leak must be reported to the Department, pursuant to 6 NYCRR 613.8, within two (2) hours of discovery by calling the Spills telephone hotline at (800)457-7362 or, for out-of-state callers, (518)457-7362.
  6. 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.
  7. All communications between the Respondent and Department Staff concerning this Order shall be made to Associate Attorney Benjamin A. Conlon, Esq., NYSDEC, 50 Wolf Road, Room 410A, Albany, New York 12233-5550.

For the New York State Department
of Environmental Conservation
/s/
By: John P. Cahill, Commissioner

Dated: Albany, New York
October 12, 2000

TO: BENJAMIN CONLON, ESQ.
NYSDEC
50 WOLF ROAD
ALBANY, NEW YORK 12203-5550

690 RIVERSIDE DRIVE ALDO ASSOC LLC
PO BOX 189
LAWRENCE, NEW YORK 11559

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of
the Alleged Violation of Article 17 of
the Environmental Conservation Law of the State of New York and Title 6 of NYCRR of the State of New York

- BY -

690 RIVERSIDE DRIVE ALDO ASSOC LLC.

Respondent.

DEFAULT SUMMARY REPORT

DEC Case No.

2-091383

Proceedings

By Notice of Motion dated August 7, 2000, Staff of the Department of Environmental Conservation (DEC or Department) sought a judgment by default against Respondent concerning alleged violations of §17-1005 of the Environmental Conservation Law (ECL) and 6 NYCRR 613.5. It is alleged by DEC that Respondent violated ECL §17-1005 and 6 NYCRR 613.5 by failing to test the petroleum storage tanks and connecting piping systems at its facility in Lawrence, New York for tightness and to submit the testing results to the DEC for approval. In support of its motion, DEC submitted an affirmation of Assistant Regional Attorney Benjamin A. Conlon, the affidavit of Peter Huang, P.E., of the DEC, a proposed Order and proof of proper service of the Notice of Hearing and Complaint on the Respondent.

As of the date of the Motion, Respondent has failed to appear and serve an Answer or otherwise move, although the time to do so expired on or about April 12, 2000. Further, Staff submitted proof that said Notice of Hearing and Complaint directed Respondent to appear for a pre-hearing conference on April 25, 2000. The affirmation of attorney Conlon indicates that Respondent failed to appear at said conference and did not obtain, nor request an adjournment of the conference.

Respondent was served with the Notice of Motion for Default Judgment and supporting papers on or about August 7, 2000. Respondent has 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

  1. On March 15, 2000 Staff served a Notice of Hearing and Complaint on Respondent 690 Riverside Drive Aldo Assoc LLC. The time to Answer or otherwise move expired on April 12, 2000. No Answer has been served to date.
  2. The Notice for Hearing and Complaint served on March 15, 2000 directed Respondent to appear for a pre-hearing conference on April 25, 2000. No appearance was made by Respondent at said conference.
  3. Staff served the motion for default judgment and supporting papers on Respondent on or about August 7, 2000. Respondent has not opposed said motion, the time to serve papers in opposition expired on or about August 21, 2000.
  4. The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR section 622.15(b).

CONCLUSION

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


/s/
Molly T. McBride
Administrative Law Judge

Dated: Albany, New York
September 22, 2000

To: Benjamin A. Conlon, Esq.
NYS Department of Environmental Conservation
50 Wolf Road, Room 410A
Albany, new York 12233-5550

690 Riverside Drive Aldo Assoc LLC
P.O. Box 189
Lawrence, New York 11559

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