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Cannon Industries, Inc. - Order, February 22, 1999

Order, February 22, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of the Environmental Conservation Law ("ECL") of
the State of New York, Article 27 and Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York ("6 NYCRR") Parts 370 et seq.

CANNON INDUSTRIES, INC.

Respondent.

ORDER

Case No. C8-2577-01-98

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint both dated February 4, 1998, the New York State Department of Environmental Conservation (Department) Central Office Staff commenced an administrative enforcement proceeding against the Respondent, Cannon Industries, Inc.
  2. Respondent was served with the Notice of Hearing and Complaint on June 13, 1998 by certified mail.
  3. Service of process was accomplished in accordance with 6 NYCRR §622.3(a)(3) by certified mail delivery to Respondent.
  4. The time for Respondent to serve an Answer expired on July 3, 1998. Respondent failed to serve an Answer to Department Staff's complaint within that time, or since.
  5. With respect to such failure to answer, DEC Staff made a Motion for Default Judgment by Notice of Motion dated January 14, 1999, with supporting affirmation, exhibits, and a proposed Order.
  6. The motion papers were sent to the Respondent by overnight mail on January 14, 1999.
  7. The Respondent failed to respond within the time allowed, or since, and is therefore in default as to the motion as well.
  8. I adopt the findings of the Administrative Law Judge's report which is attached hereto.
  9. Pursuant to §622.15 of 6 NYCRR, Respondent is found to be in default and as having waived his right to a hearing in this enforcement proceeding. Accordingly, Department Staff's allegations against Respondent in its Complaint are deemed to have been admitted by Respondent.
  10. The Department is responsible for enforcement of Article 27, Title 9 of the Environmental Conservation Law ("ECL") and the hazardous waste management rules and regulations promulgated thereunder in 6 NYCRR Part 370 et seq.
  11. Cannon Industries, Inc., the Respondent, conducts operations at its facility located at 545 Colfax Street, Rochester, NY 14606, which result in the generation of hazardous waste and is subject to ECL Article 27, Title 9 and the 6 NYCRR Part 370 regulations promulgated pursuant thereto.
  12. Respondent acknowledges that is conducts operations which are subject to ECL Article 27, Title 9 and the 6 NYCRR Part 370 regulations promulgated pursuant thereto.
  13. An inspection of Respondent's facility conducted by an authorized representative of the Department on May 28, 1997 revealed that Respondent violated the following hazardous waste management regulations:
    1. §373-3.9(e) - Respondent failed to inspect the hazardous waste container storage area at least weekly.
    2. §373-3.3(b) - Respondent failed to maintain the facility to minimize the possibly of a release of hazardous waste.
    3. §373-3.9(b) - Respondent failed to maintain containers in good condition.
    4. §§372.2(a)(8)(iv)/376.5(a)(1)(i) - Respondent failed to properly dispose of the waste within the proscribed time frame.
    5. §372.2(a)(8)(iii)(d) - Respondent failed to mark eleven containers of hazardous waste with the accumulation start date.
    6. §373-3.9(d)(3) - Respondent failed to mark eleven containers of hazardous waste with the words "hazardous waste."
    7. §§373-3.9(d)(1) and (d)(2) - Respondent failed to keep containers of hazardous waste closed.
    8. §373-3.3(g) - Respondent failed to make arrangements with police, fire department, emergency response teams, and local hospitals.
    9. §372.2(a)(8)(iii)(e)(2)(i) - Respondent failed to post the name and phone number of emergency coordinator.
    10. §372.2(a)(8)(iii)(e)(2)(ii) - Respondent failed to post the location of fire extinguisher.
    11. §372.2(a)(8)(iii)(e)(2)(iii) - Respondent failed to post the telephone number of fire department.
    12. §372.2(a)(8)(iii)(2)(3) - Respondent failed to ensure that employees were familiar with proper waste handling procedures.

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

  1. Respondent comply with the requirements of the cited regulations within 30 days after the effective date of this Order.
  2. Respondent shall pay a civil penalty for the cited violations in the amount of ELEVEN THOUSAND SEVEN HUNDRED FIFTY DOLLARS ($11,750.00). The penalty shall be paid by certified check payable to the Department of Environmental Conservation and shall be due no later than 30 days after the effective date of this Order. The check shall be sent to the attention of Salvatore J. Carlomango, P.E., NYSDEC, Division of Solid and Hazardous Materials, 50 Wolf Road, Albany, NY 12233-7252.
  3. Any violation of terms or conditions of this Order shall result in a penalty of ONE THOUSAND DOLLARS ($1,000.00) per day per violation.
  4. The failure of Respondent to comply with any provision of this Order shall constitute a violation of this Order and the ECL.

    (Respondent shall not suffer any stipulated penalty under this Order, or be deemed to be in violation hereof or be subject to any proceeding or action, if Respondent's compliance with any requirements hereof is rendered impossible by a natural event, war, strike, work stoppage, riot or other catastrophe as to which negligence or misconduct on the part of Respondent was not the proximate cause; provided, however, that Respondent shall make its best effort to comply nonetheless and shall, within one business day, notify the office of the Director, Division of Environmental Enforcement, Department of Environmental Conservation by telephone and in writing, after it obtains knowledge of any such condition or event and request an appropriate extension or modification of this Order.)

    1. Nothing contained in this Order shall be construed as barring, diminishing, adjudicating or in any way affecting any of the Department's civil, criminal, or administrative rights and authorities, including but not limited to nor exemplified by, the right to recover natural resources damages.
    2. Nothing contained in this Order shall be construed to prohibit the Commissioner or the Commissioner's designee from exercising any summary abatement powers pursuant to ECL 71-0301.
  5. The effective date of this Order shall be the date that it is signed by the Commissioner, or the Commissioner's designee. The Department shall provide Respondent with a fully executed copy of this Order as soon as practicable after this Order has been signed by the Commissioner, or the Commissioner's designee.

    (No term, condition, understanding or agreement purporting to vary the terms hereof shall be binding unless made in writing and subscribed by the party to be bound, in accordance with this Order. No informal oral or written advice, guidance, suggestions or comments by the Department regarding reports, proposals, plans, specifications, schedules or any other writing submitted by Respondent shall be construed as relieving Respondent of its obligations to obtain such formal approvals as may be required by this Order.)

  6. All communications between the Respondent and the Department concerning this Order shall be made to the Director, Division of Environmental Enforcement, Department of Environmental Conservation, 50 Wolf Road, Albany, NY 12233-5500.
  7. The provisions, terms, and conditions of this Order shall bind the Respondent, his agents, servants, employees,successors, and assigns, and all persons, firms, and corporations for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Carl Johnson, Deputy Commissioner

Dated: Albany, New York
February 22, 1999

To: Monica Conley, Esq.
Senior Attorney
Division of Environmental Enforcement
NYS Department of Environmental Conservation
50 Wolf Road
Albany, NY 12233-5500

Jack Cannon, President and CEO
Cannon Industries, Inc.
545 Colfax Street
Rochester, NY 14606

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

CANNON INDUSTRIES, INC.,

Respondent.

Default Summary Report

Case No. C8-2577-01-98

Proceedings

Staff of the Central Office of the Department of Environmental Conservation served a Notice of Motion for Default Judgment upon Jack Cannon, CEO of Cannon Industries, Inc., Respondent, by overnight mail on January 14, 1999.

Discussion

6 NYCRR §622.6(a) governs the service of "papers". A motion is a "paper" provided personal jurisdiction over the Respondent has been previously obtained.

§622.6(a) provides, in pertinent part, that service of papers is governed by CPLR 2103. CPLR 2103(c) provides that a party without an attorney may be served under subdivision (b)2, 4, 5 or 6 of CPLR 2103 in the same manner that an attorney to a party may be served.

Subdivision (b)6 (of CPLR 2103) provides that service may be made by overnight mail. A United States Post Office Domestic Return Receipt attached to Notice of Hearing and Complaint as attached to the motion papers shows that the Respondent was served with the Notice of Hearing and Complaint by certified mail delivered on June 13, 1998, pursuant 6 NYCRR 622.3(a)(3), so that personal jurisdiction was then obtained over the Respondent. The Respondent then had 20 days to serve an Answer upon the Department Staff (6 NYCRR §622.4(a)). The Respondent's time to answer thus expired on July 3, 1998. Since no answer has ever been received by Staff from Respondent or from anyone on Respondent's behalf, and no extensions of time to answer have been granted, the Respondent has been in default since July 3, 1998.

An overnight courier receipt shows that the motion papers were sent to the Respondent (c/o Jack Cannon, President and CEO) Cannon Industries Inc. on January 14, 1999. Respondent then had 5 days to respond (6 NYCRR §622.6(c)(3)) plus 1 day more for overnight mail (CPLR 2103(b)(6)) for a total of 6 days, expiring on January 20, 1999. With no response to the motion having been received, and no extension of time to respond having been granted, Respondent is in default on the motion as well, as of January 20, 1999.

Failure to answer a complaint constitutes grounds for a default judgment pursuant to 6 NYCRR §622.15. The regulation requires that a motion for a default judgment must contain: (1) proof of service upon the Respondent of the document which commenced the proceeding; (2) proof of the Respondent's failure to appear or to file a timely answer; and (3) a proposed Order. The Staff has submitted proof of the service of the notice of hearing and complaint pursuant to 6 NYCRR §622.3(a)(3). In addition, the staff also affirms that the Respondent failed to appear or to file an answer in response to the complaint. In the notice of hearing, Respondent was made aware of the consequences of failure to answer. Staff also included a proposed order with its motion. Staff's motion was properly served on the Respondent and as of January 20, 1999 Respondent has failed to respond to the Staff's motion for a default judgment.

Conclusion

Staff's motion for a default judgment meets the requirements of 6 NYCRR §622.15(b) as outlined above. Therefore, in accordance with 6 NYCRR §622.15(c), this summary report, which is limited to a description of the circumstances of the default, is hereby submitted to the Commissioner, accompanied by Staff's proposed Order.

Recommendation

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

_____________/s/_____________
John H. Owen
Administrative Law Judge

Dated: Albany, New York
February 17, 1999

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