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Cogen, Paula - Order, April 7, 2003

Order, April 7, 2003

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 17 of the
Environmental Conservation Law (ECL) and 6 NYCRR Parts 612 and 613 by:

Paula Cogen

Mohawk (T) Herkimer (Co.)

RESPONDENT

ORDER

DEC Case No.: R620011001-93

WHEREAS:

  1. On November 13, 2002, the staff of the New York State Department of Environmental Conservation ("Staff") served a Notice of Hearing and Complaint on Respondent, Paula Cogen, pursuant to Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York (6 NYCRR) 622.3.
  2. The Complaint alleged that Respondent violated the provisions of 6 NYCRR .612.2(b) by failing to transfer the registration of an existing petroleum bulk storage facility to her within ten days of acquiring ownership of the facility. The petroleum bulk storage facility is located at 9 Canal Street in Mohawk, Herkimer County.
  3. The Complaint also alleged that Respondent violated the provisions of 6 NYCRR .613.5(a) by failing to complete required periodic tightness testing of an unprotected underground storage tank at the facility or to close the tank permanently as required by the regulation.
  4. The Notice of Hearing included notification to Respondent that a pre-hearing conference was scheduled for December 7, 2002, in the Department's Utica office. On November 26, 2002, the Department sent Respondent notice that the date of the pre-hearing conference was changed from December 7, 2002, to December 9, 2002.
  5. Respondent failed to appear at the Department's offices at either scheduled date for the pre-hearing conference.
  6. Pursuant to 6 NYCRR .622.15, Staff served a motion for default judgment dated March 20, 2003 and filed a copy of the motion with the Office of Hearings and Mediation Services.
  7. As required by 6 NYCRR .622.15(b) Staff's motion included:

    1) Proof of service of the Notice of Hearing and Complaint commencing this action against Respondent;

    2) Proof that Respondent failed to appear at the pre-hearing conference in this matter;

    3) a proposed Order.

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

  1. Pursuant to 6 NYCRR .622.15, DEC Staff's motion for order without hearing is granted. Respondent violated 6 NYCRR 612.2(b) by failing to transfer registration of the petroleum bulk storage facility located at 9 Canal Street in Mohawk, Herkimer County. Respondent also violated 6 NYCRR 613.5(a) by failing to tightness test the unprotected underground petroleum bulk storage tank at the facility.
  2. Within thirty days of service of a conformed copy of this Order on Respondent, the Respondent shall register the facility in her name in accordance with 6 NYCRR 612.2 and include payment of the requisite fee pursuant to 6 NYCRR 612.3.
  3. Within sixty days of service of a conformed copy of this Order on Respondent, Respondent shall permanently close the tank at the facility. Permanent closure shall mean permanent closure in accordance with 6 NYCRR 613.9(b) and shall include submission of a tank closure report acceptable to the Department. Prior to closing the tank, Respondent must provide notice of substantial facility modification to the Department in accordance with 6 NYCRR 612.2(d).
  4. If evidence of any spill, leak or discharge of petroleum is found during closure of the tank, the Department must be notified immediately in accordance with 6 NYCRR 613.8 and the Navigation Law of New York State.
  5. Respondent is assessed a civil penalty of four thousand dollars ($4,000.00). One thousand dollars is apportioned to Respondent's violation of 6 NYCRR 612.2(b); three thousand dollars is apportioned to Respondent's violation of 6 NYCRR 613.5(a).
  6. Three thousand dollars ($3000.00) of the civil penalty shall be due and payable within thirty days of service of a conformed copy of this Order upon the Respondent.
  7. Payment of the remaining one thousand dollars ($1,000.00) is suspended provided Respondent complies with paragraphs II, III , IV and VI of this Order. If Respondent fails to comply with any of the requirements specified in those paragraphs, the one thousand dollar ($1,000.00) suspended portion of the penalty shall be immediately due and payable to the Department. Payment to the Department shall be in the form of a cashier's or certified check or money order payable to "NYSDEC."
  8. All communications from Respondent to the Department in this matter, including the payment of penalties, shall be made to the Regional Director, NYSDEC Region 6, 317 Washington Street, Watertown, NY 13601-3787.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
/s/
by:_________________________________
Erin M. Crotty, Commissioner

Dated: Albany, New York
April 7, 2003

To: Paula Cogen
110-114 Green Street
Fitchburg, Massachusetts 01420-3400

Randall C. Young, Esq.
Assistant Regional Attorney
NYSDEC Region 6
Dulles State Office Building
317 Washington Street
Watertown, New York 13601-3787

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

an Alleged Violation of Article 17 of the
Environmental Conservation Law (ECL) and Part 612 and Part 613
of Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR) by:

Paula Cogen
Town of Mohawk
Herkimer County

RESPONDENT

Summary Report

Case No.: R620011001-93

Proceedings

On November 13, 2002, the Region 6 Staff of the Department of Environmental Conservation (the Department Staff or Staff) duly served a notice of hearing and complaint upon Paula Cogen, by certified mail return receipt requested. The notice stated that pursuant to

6 NYCRR .622.4, the Respondent must serve an answer upon DEC Staff within twenty days of receiving the notice of hearing and complaint. As provided for by .622.8, the notice also scheduled a prehearing conference for December 7, 2002 at 11:00 a.m. at the Department's Region 6 Suboffice in Utica. The notice stated that if the Respondent failed either to file an answer or to attend the prehearing conference, the Respondent would be in default and would waive her right to a hearing.

The November 13, 2002 complaint alleged two causes of action. In the first cause of action, the Department asserted that the Respondent owns a petroleum bulk storage facility at

9 Canal Street in Mohawk, Herkimer County. The Respondent allegedly violated .612.2 by not re-registering the facility after she acquired it on June 14, 1999. For the first cause of action, the Department requested a civil penalty of $2,000. In the second cause of action, the Department asserted that the Respondent failed to conduct a tightness test of the tank and its connecting piping system after she acquired the facility on June 14, 1999 in violation of .613.5. For the second cause of action, the Department requested a civil penalty of $6,000.

With a cover letter dated November 26, 2002, the Department Staff re-served the notice of hearing by certified mail, return receipt requested. The second notice of hearing was dated November 26, 2002. In the second notice, the Staff rescheduled the prehearing conference from December 7, 2002 to December 9, 2002. The time and location for the rescheduled prehearing conference did not change.

With a letter dated December 6, 2002, the Respondent replied to the Staff's notice of hearing and complaint. The Respondent explained that she attended a property auction for a friend and purchased the facility for him. The Respondent's friend died, however, before ownership of the property could be transferred from the Respondent to her friend. The Respondent stated that she could not afford to register the facility or to test the tank for tightness without causing her to become bankrupt. A fire occurred at the facility sometime after the purchase.

With a cover letter dated March 20, 2003, the Staff filed a notice of motion, a motion, and an affidavit by Randall Young for a default judgment against the Respondent. In the motion, the Staff requested:

(1) Finding that the Respondent Paula Cogen violated .612.2 and .613.5 by failing to register her petroleum bulk storage facility at 9 Canal Street in Mohawk, Herkimer County, New York, and by failing to conduct a tightness test after she purchased the facility on June 14, 1999;

(2) Assessing a total civil penalty of $4,000.00 against the Respondent;

(3) Directing the Respondent to comply with 6 NYCRR .612.2 by registering the petroleum bulk storage facility within 30 days after the effective date of the Commissioner's Order; and

(4) Granting such other and further relief as may be just and proper.

The motion for default judgment was based on the Respondent's failure to appear at either prehearing conference scheduled in the notices of hearing. The default motion was mailed to the Respondent.

Findings of Fact

  1. On November 13, 2002, Ardis Seifried served the notice of hearing and complaint in this matter upon Paula Cogen, by certified mail return receipt requested. The notice of hearing and complaint was sent to Ms. Cogen at 110-114 Green Street, Fitchburg, Massachusetts 01420-3400. Ms. Cogen received the November 13, 2002 notice of hearing and complaint on November 15, 2002.
  2. With a cover letter dated November 26, 2002, a second notice of hearing dated the same was sent to the Respondent by certified mail return receipt requested.
  3. With respect to the notice of hearing and complaint dated November 13, 2002, the time for the Respondent to serve an answer to the complaint expired on December 5, 2002.
  4. With a letter dated December 6, 2002, the Respondent replied to the Department's November 13, 2002 complaint.
  5. The first notice of hearing scheduled a prehearing conference for December 7, 2002 at 11:00 a.m. at the Department's Region 6 Suboffice in Utica. The second notice rescheduled a prehearing conference for December 9, 2002 at the same time and location.
  6. The Respondent did not appear at any prehearing conference.

Discussion

According to Department's hearing regulations, a Respondent's failure to appear at the prehearing conference, even if a timely answer has been filed, constitutes a default and a waiver of the Respondent's right to a hearing [6 NYCRR 622.15(a)]. Under these circumstances, DEC Staff may move for a default judgment. Pursuant to 622.15(b), the Staff's motion must contain:

(1) Proof of service upon the Respondent of the notice of hearing and complaint or other such document which commenced the proceeding;

(2) Proof of the Respondent's failure to appear at a prehearing conference, or to file a timely answer; and

(3) A proposed order.

Ms. Seifried's March 20, 2003 affidavit of service demonstrates service of the November 13, 2002 notice of hearing and complaint upon the Respondent in a manner consistent with the requirements outlined in .622.3(a)(3).

Regardless of whether the Respondent's December 6, 2002 letter could be considered an answer to the complaint, the affidavit of Randall C. Young, Assistant Regional Attorney, demonstrates that the Respondent did not appear at the prehearing conference on December 7, 2002, or at the rescheduled prehearing conference on December 9, 2002. Therefore, pursuant to 6 NYCRR .622.15(a), the Respondent's failure to appear at the prehearing conference, even if a timely answer has been filed, is a default and a waiver of her right to a hearing

The Department Staff has provided a proposed order with its motion papers. The proposed order would assess a total civil penalty of $4,000.00, and would be apportioned as follows. For the Respondent's failure to register the facility, the proposed order assesses a civil penalty of $1,000.00. For the Respondent's failure to tightness test the tank and associated pipes, the proposed order assesses a civil penalty of $3,000.00. The proposed order suspends $1,000.00 of the total assessed civil penalty provided the Respondent complies with the terms of the proposed order.

Conclusion

The Respondent has defaulted on its obligation to appear at the prehearing conference. As a result, Paula Cogen has waived her right to a hearing.

Recommendation

The proposed order, submitted by Department Staff, should be signed and served on the Respondent. The civil penalty should be apportioned as described above.

/s/
____________________________
Daniel P. O'Connell
Administrative Law Judge

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