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BJ's Wholesale Club, Inc. - Order, January 5, 1994

Order, January 5, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Articles 33 and 71 of
the Environmental Conservation Law ("ECL") and Parts 325 and 326 of
Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

BJ's WHOLESALE CLUB, INC.
and JACK NUGENT, PRESIDENT

Respondent(s).

(Dutchess County)

ORDER

Case No. D3-0003-9708

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, Pre-Hearing Conference and Calendar Call, as well as a Complaint upon Respondents BJ's Wholesale Club, Inc. and Jack Nugent, President (collectively, the "Respondents" herein) by certified mail, return receipt requested.
  2. The complaint asserted two causes of action for sale of unregistered pesticides. The first cause of action was that on or about April 19, 1994 in the Town of Wappingers Falls, County of Dutchess, State of New York, BJ's Wholesale Club, Inc. distributed, sold or offered for sale pesticides known as "Fresh Scent Bathroom & Bowl Disinfectant Cleaner" (EPA Registration No. 47371-97-40795) without a valid product registration issued by the Department in violation of ECL Sections 33-0701 and 33-1301(1)(a).

    The second cause of action was that on or about April 19, 1994 in the Town of Wappingers Falls, County of Dutchess, State of New York, BJ's Wholesale Club, Inc. distributed, sold or offered for sale pesticides known as "HP-170 Heavy Duty Disinfectant Cleaner" (EPA Registration No. 2296-98-40795) without a valid product registration issued by the Department in violation of ECL Sections 33-0701 and 33-1301(1)(a).

  3. The notice stated that a pre-hearing conference and calendar call was scheduled to take place on Tuesday, October 21, 1997, at 3:00 P.M. at the NYSDEC Region 3 Office located on 21 South Putt Corners Road, New Paltz, New York. 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 Respondents' right to a hearing.
  4. The affidavit of Verna Luck states that she served Respondents by placing a true and correct copy of the notice and complaint in a secure postpaid wrapper addressed to Respondents, and that the notice and complaint were mailed to Respondents by certified mail return receipt requested. The associated return receipt indicates that the notice and complaint were received by Respondents on September 8, 1997.
  5. Staff documents that the time for service of the answer expired with no reply from Respondents and that Respondents failed to appear at the scheduled calendar call/pre-hearing conference.
  6. I adopt the findings of the Administrative Law Judge's report which is attached hereto.
  7. Failure to answer a complaint or to appear at a pre-hearing conference are both grounds for a default judgment pursuant to 6 NYCRR 622.15.

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

  1. Pursuant to 6 NYCRR 622.15, Respondents are found to be in default.
  2. Within thirty (30) days from service of this Order upon Respondents, they shall:
    1. Permanently cease and desist from the sale, offer for sale, or distribution of pesticides in New York State unless each pesticide product has a valid product registration issued by the Department;
    2. In accordance with ECL 71-2907, jointly and severally pay an administrative penalty in the sum of SIX THOUSAND EIGHT HUNDRED DOLLARS ($6,800), $2,450 for the first cause of action and $4,350 for the second cause of action, reflecting a penalty of $50 for each one gallon container of unregistered product; and,
    3. Cease and desist from all violations of the Environmental Conservation Law and the codes, rules and regulations promulgated thereunder.
  3. All communications between Respondents and Staff concerning this Order shall be made to Victor Gallo, Assistant Counsel, NYS Department of Environmental Conservation, 50 Wolf Road, Room 627, Albany, New York 12233-5500.
  4. The provisions, terms and conditions of this Order shall bind Respondents, their agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of Respondents.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: John P. Cahill, Commissioner

Dated: Albany, New York
January 5, 1998

TO: Mr. Jack Nugent
President
BJ's Wholesale Club, Inc.
1 Mercer Road
Natick, MA 01760-9907

Victor Gallo, Esq.
Assistant Counsel
NYSDEC
50 Wolf Road, Room 627
Albany, NY 12233-5500

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Articles 33 and 71 of the Environmental Conservation Law
and Part 325 and 326 of Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York

by

BJ's WHOLESALE CLUB, INC. and JACK NUGENT, PRESIDENT

Respondent(s)

(Dutchess County)

DEFAULT SUMMARY REPORT

Case No. D3-0003-9708

Proceedings

Staff of the Department of Environmental Conservation ("DEC") issued a combined Notice of Hearing, Pre-Hearing Conference and Calendar Call, as well as a Complaint, to the Respondents in this matter. The notice announced that a pre-hearing conference and calendar call involving an appearance before an Administrative Law Judge ("ALJ") would be held at 3 p.m. on October 21, 1997, at the Department's Region 3 office in New Paltz.

On October 21, 1997, the Department Staff counsel, Victor J. Gallo, moved orally for a default judgment based on the Respondents' failure to answer the complaint or appear at the scheduled pre-hearing conference and calendar call. A record was created which includes the notice and complaint (Exhibit No. 1) as well as Staff's affidavit of certified mail service, signed by Verna Luck of DEC's Office of General Counsel (Exhibit No. 2). Attached to the affidavit is the domestic return receipt (or "green card") indicating delivery of the notice and complaint on September 8, 1997, to an agent of the Respondents. The record was held open for receipt of the hearing transcript and Staff's proposed order. The transcript arrived on November 13, 1997, and Staff's proposed order was received on December 8, 1997.

Findings of Fact

  1. The notice of hearing and complaint in this matter were served by certified mail in an envelope addressed to Mr. Jack Nugent, President, BJ's Wholesale Club, Inc., 1 Mercer Road, Natick, MA 01760. An agent for the Respondents, whose signature cannot be deciphered from the "green card", accepted delivery on September 8, 1997.
  2. The notice confirmed the Respondents' duty [under 6 NYCRR 622.4(a)] to serve an answer on DEC within 20 days of receipt of the complaint. However, as of October 21, 1997, no answer had been received by DEC.
  3. The notice also announced a pre-hearing conference to be held at 3 p.m. on October 21, 1997. Neither the Respondents nor anyone on their behalf appeared at the conference.

Discussion

According to the Department's hearing regulations, a respondent's failure to file a timely answer or, even if a timely answer is filed, failure to appear at a pre-hearing conference announced in the notice of hearing constitutes a default and a waiver of respondent's right to a hearing. [See, 6 NYCRR 622.15(a).] In either circumstance, Department Staff may move for a default judgment, such motion to 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. [See, 6 NYCRR 622.15(b).]

Department Staff's affidavit of mail service, coupled with the "green card" indicating delivery to an agent of the Respondents, adequately demonstrates service of the notice and complaint effective September 8, 1997. As confirmed in the hearing notice, the Respondents were to have served their answer, within 20 days following receipt of the complaint, to the Office of Hearings and to Mr. Gallo. No answer was received by this office or by Mr. Gallo, and neither the Respondents nor anyone on their behalf appeared at the scheduled pre-hearing conference, over which I presided. I and the members of my office have had no contact with the Respondents or anyone claiming to represent them. There was no request to extend the time to answer and no request to reschedule the pre-hearing conference. By failing to file a timely answer and by failing to appear at the announced pre-hearing conference, the Respondents defaulted and waived their right to a hearing.

The regulations provide that where Department Staff have met the requirements for a default, the ALJ will submit a summary report limited to a description of the circumstances of the default, and Staff's proposed order to the Commissioner. The order attached to this report is an edited version of the one submitted by Mr. Gallo. I have made some formatting changes; also, I have modified the relief clause to note how Staff intends that its proposed $6,800 penalty be allocated between the two causes of action. This allocation was not part of Staff's proposed order; however, Staff's intent is established in the hearing transcript. Incidentally, the $6,800 penalty proposed by Staff represents a $7,200 reduction from the $14,000 demanded in the complaint.

Conclusion

The requirements of 6 NYCRR 622.15(b) for a motion for a default judgment have been adequately met. The Respondents have defaulted and waived their right to a hearing in this matter.

Recommendation

The attached order confirming the default should be signed and served upon the Respondents.

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge

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