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Boonville Oil Co - Decision and Order, December 24, 1997

Decision and Order, December 24, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violation of Article 17 of the Environmental Conservation Law and
Parts 612, 613 and 614 of the Official Compilation of Codes, Rules and Regulations of
the State of New York

- by -

Boonville Oil Co., Inc.,

Respondent

DECISION and ORDER

File No.

R6-1969-97-03

WHEREAS:

  1. Pursuant to 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 Region 6 Office of the New York State Department of Environmental Conservation (the "Department") served a Motion for Default Judgement upon Boonville Oil Co., Inc. (the "Respondent") by certified mail, return receipt requested on October 28, 1997.
  2. The supporting papers submitted with the motion prove that on July 23, 1997, the Department Staff served a Notice of Hearing and Complaint upon the Respondent by certified mail, return receipt requested. The Notice of Hearing directed that the Respondent file an answer with the Department within 20 calendar days of receipt of the Notice of Hearing and Complaint. Although the Department Staff extended this deadline at the request of the Respondent, the Respondent failed to file an answer by the October 23, 1997 deadline later set by the Department Staff. The Notice of Hearing provided that failure to file an answer would constitute a default and a waiver of the right to a hearing.
  3. I adopt the conclusions of the Administrative Law Judge's report, attached hereto.
  4. Failure to answer a Complaint is grounds for a default judgement pursuant to 6 NYCRR 622.15.

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

  1. Pursuant to 6 NYCRR 622.15, the Respondent is found to be in default and accordingly, Staff's allegations against the Respondent are deemed to have been admitted by the Respondent.
  2. Within thirty (30) days, Respondent shall:
    1. Submit complete registration renewals to the Department with payment for Respondent's Port Leyden facility;
    2. Color code the fill ports of tanks 001 and 002 at the Village Cafe; tanks 001 and 002 at the Port Leyden facility;
    3. Install impact valves on the dispensers for: tanks 005 and 006 at Boonville Oil, Main Street, Boonville; tanks 004 and 005 at Port Leyden;
    4. Install shut-off valves for tank 008 at Boonville Oil, Main Street, Boonville;
    5. Label tank 008 and the aboveground kerosene tank at Boonville Oil, Main Street, Boonville;
    6. Tightness test, using a Department approved tightness testing method, or permanently close tanks 001 and 002 at Port Leyden;
    7. Test the cathodic protection systems for tank 007 at Boonville Oil, Main Street, Boonville; tanks 004 and 005 at Port Leyden; and tanks 001 and 002 at the Village Cafe;
    8. Inspect the leak monitoring systems and 004 and 005 at the Port Leyden facility and report the results to the Department;
    9. Install labels required by 6 NYCRR Part 614.3(a) on tanks 004 and 005 at the Port Leyden facility;
    10. Install leak detectors as required by 6 NYCRR Part 614.14(g)(3) on the submersible pumps in tanks 004 and 005 at the Port Leyden facility; and
    11. Replace the piping associated with tanks 004 and 005 at the Port Leyden facility in compliance with 6 NYCRR Part 614.14;
  3. Respondent shall immediately and on a continuing basis:
    1. Conduct inventory monitoring required by 6 NYCRR Part 613.4;
    2. Maintain accurate inventory monitoring records at its facilities and reconcile the records required by 6 NYCRR Part 613.4.;
    3. Monitor the leak detection systems on tanks 004 and 005 at the Port Leyden facility;
    4. Maintain accurate and complete records regarding cathodic protection systems and leak detections systems at its facilities; and
    5. Perform monthly inspections of the aboveground tanks at its facilities and maintain accurate, complete records of those inspections.
  4. If any cathodic protection or leak detection system is found to be non-functional, Respondent shall have the systems repaired within thirty (30) days. If the cathodic protection or leak detection system is not repaired and continuously functional thereafter, Respondent shall have the tank concerned tightness tested within thirty (30) days and every five years thereafter until the tank is permanently closed.
  5. Respondent is assessed a penalty in the amount of thirty two thousand dollars ($32,000) with ten thousand dollars ($10,000) of that amount suspended conditioned upon Respondent's compliance with the terms of this Order.
  6. The Department is hereby authorized to enter Respondent's premises for the purpose of determining compliance with the terms of this order, the ECL and the regulations promulgated pursuant thereto.
  7. All communications pursuant to this Order shall be sent to: Assistant Regional Attorney, NYSDEC Region 6, 317 Washington Street, Watertown, New York 13601.
  8. The provisions, terms and conditions of this Order shall bind the Respondent, its officers, directors, agents, servants, employees, successors and assigns, and all persons, firms and corporations acting for or on behalf of the Respondent.
  9. Nothing herein shall prohibit the Department from instituting any actions or proceedings allowed for by law for violations not specifically addressed herein.

For the New York State Department
of Environmental Conservation

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

Dated: Dated: Albany, New York
December 24, 1997

TO: Boonville Oil Co., Inc.
601 Main Street
Boonville, New York 13309

William Riley, Esq.
322 Post Street
P.O. Box 148
Boonville, New York 13309

Randall C. Young, Esq.
NYS Department of Environmental
Conservation, Region 6
317 Washington Street
Watertown, New York 13601

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violation of Article 17 of the Environmental DEFAULT Conservation Law and
Parts 612, 613 and 614 of the Official Compilation of
Codes, Rules and Regulations of the State of New York

- by -

Boonville Oil Co., Inc.,

Respondent

SUMMARY REPORT

File No.

R6-1969-97-03

Summary

The present report concerns a motion for a default judgment which the Region 6 Staff of the Department of Environmental Conservation (the "Department Staff") served in the matter of Boonville Oil Co., Inc. (the "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"). The report recommends that the motion be granted.

Proceedings

On or about April 15, 1997, Randall C. Young, Esq., Assistant Regional Attorney in the Department's Region 6 Office, mailed a proposed Order on Consent to the Respondent. The proposed Order on Consent addressed alleged violations of 6 NYCRR Parts 612 through 614 (Registration of Petroleum Storage Facilities, Handling and Storage of Petroleum, and Standards for New and Substantially Modified Petroleum Storage Facilities).

The Region 6 office received no response to the proposed Order on Consent. On or about May 22, 1997, Mr. Young wrote to the Respondent again, stating that continued failure to respond to the proposed Order on Consent would result in commencement of enforcement proceedings. There were communications between the Department Staff and the Respondent after the second letter but no agreement on an Order on Consent.

On or about July 21, 1997, Mr. Young sent a notice of Hearing and Complaint concerning the alleged violations to the Respondent by certified mail, return receipt requested. This correspondence was delivered on July 23, 1997 and the return receipt was sent back to the Department Staff.

William Riley, Esq., on behalf of the Respondent, spoke with Mr. Young and requested an extension of the time to submit an Answer, which request was granted by Mr. Young. On August 18, 1997 Mr. Riley sent the Department Staff an item by item response to the proposed Order on Consent. There was some additional correspondence between the parties in September, 1997.

Mr. Young wrote to Mr. Riley on or about October 10, 1997, requesting an Answer to the Department's Complaint by October 23, 1997. The letter also included a demand for production of documents. As of October 27, 1997, the Respondent had not replied to the letter which requested an Answer, nor to an earlier letter concerning revisions of the proposed Order on Consent.

On October 27, 1997, the Department Staff moved for a default judgment based on the Respondent's failure to answer the Complaint. The motion was sent to the Office of Hearings and Mediation Services of the Department of Environmental Conservation, with a copy sent to Mr. Riley. On October 29, 1997 Mr. Young sent to the Department's Chief Administrative Law Judge a letter confirming that the motion for a default judgment was served upon Mr. Riley. Attached to the letter was a copy of the Postal Service return receipt showing delivery of the motion on October 28, 1997. As of December 16, 1997, the Office of Hearings and Mediation Services has not received any response from Mr. Riley, nor from the Respondent directly, concerning the motion for a default judgment, nor a copy of an Answer.

Discussion

The procedures for a default judgment are provided in 6 NYCRR Section 622.15. The regulation provides that a respondent's failure to file a timely answer constitutes a default and a waiver of the respondent's right to a hearing. In this event, the Department Staff may make a motion to the Administrative Law Judge ("ALJ") for a default judgment. Failure to appear at a hearing or at a scheduled pre-hearing conference also constitute defaults, although those circumstances are not under consideration in the present case.

6 NYCRR 622.15(b) requires that a motion for default judgment 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 regulation further provides that upon a finding by the ALJ that the requirements of subdivision 622.15(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.

In the present case, the Department Staff has submitted an affidavit by Randall C. Young, Esq. which proves that the Notice of Hearing and Complaint were served upon the Respondent on July 23, 1997.

The affidavit also proves that the Respondent failed to file a timely answer. The Notice of Hearing informed the Respondent that failure to answer would constitute a default and would result in waiver of the right to be heard in the matter. The Notice of Hearing directed that the Respondent file an answer with the Department by 20 days from receipt of the complaint, which would have been August 12, 1997. This deadline was extended by the Department Staff, at the request of the Respondent. The length of this extension is not identified in the affidavit. On October 10, 1997, the Department Staff requested that the Respondent submit an Answer by October 23, 1997. The answer was not submitted by this date, nor was any answer submitted following the motion for a default judgment.

The Department Staff submitted a proposed order with the motion for a default judgment.

Thus, the requirements of 6 NYCRR 622.15(b) have been met with respect to the motion for a default judgment in this matter. In accordance with 6 NYCRR 622.15(c), this summary report, which is limited to a description of the circumstances of the default, will be submitted to the Commissioner accompanied by a proposed order.

Recommendation

The Commissioner should grant the default judgment requested by the Department Staff in this matter.

_____________/s/_____________
By: Susan J. DuBois
Administrative Law Judge

Albany, New York

Attachment

TO: Boonville Oil Co., Inc.
601 Main Street
Boonville, New York 13309

William Riley, Esq.
322 Post Street
P.O. Box 148
Boonville, New York 13309

Randall C. Young, Esq.
NYS Department of Environmental
Conservation, Region 6
317 Washington Street
Watertown, New York 13601

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