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P-I-E Nationwide, Inc. - Order, March 26, 2003

Order, March 26, 2003

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 -

P-I-E Nationwide, Inc.
PO Box 23938
4741 Atlantic Boulevard, Suite C
Jacksonville, Florida 32241-3938

RESPONDENT

ORDER

Case No. 7-020338

WHEREAS:

  1. Pursuant to a notice of hearing and complaint, dated December 7, 2001, duly served on Respondent herein on December 17, 2001, a pre-hearing conference was scheduled for and held on January 18, 2002. The Department of Environmental Conservation Region 7 Staff (Department Staff) appeared by Jennifer L. Powell, Assistant Regional Attorney, Region 7. Respondent P-I-E Nationwide, Inc. did not appear, either personally or by representative, and no answer to the charges was filed in its behalf.
  2. Upon the notice of motion and motion herein dated May 6, 2002, the affidavit of Jennifer L. Powell in support of the motion, sworn on the 6th day of May 2002, and the notice of hearing and complaint heretofore served herein, with proof of service thereof, I find that the Respondent failed to file a timely answer as required by 6 NYCRR 622.4(a) and failed to appear at the pre-hearing conference duly scheduled in this case as required by 6 NYCRR 622.8(c) and that the Respondent is therefore in default under the provisions of 6 NYCRR 622.15(a) and has waived its right to a hearing on this matter.
  3. I further find that the Respondent has violated 6 NYCRR §612.2 and §613.5 by failing to register and tightness test its petroleum bulk storage tank #002.

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

  1. Respondent P-I-E Nationwide, Inc. is hereby determined to have violated 6 NYCRR §612.2 and §613.5 and further determined to be in default.
  2. Respondent P-I-E Nationwide, Inc. is hereby assessed a civil penalty of $17,500.00 for the violations described above and is directed to pay the same by cashier's or teller's check or money order by delivering the same within thirty days of the date of this Order to Jennifer L. Powell, Esq., Assistant Regional Attorney, NYS Department of Environmental Conservation, Region 7, 615 Erie Boulevard West, Syracuse, New York 13204-2400.
  3. Respondent P-I-E Nationwide, Inc. is hereby directed to comply with 6 NYCRR §612.2 and §613.5 by registering and tightness testing its petroleum bulk storage facility within 30 days after the effective date of this Order.
  4. All communications between the Respondent and the Department concerning this Order shall be made to the Regional Director, New York State Department of Environmental Conservation, Region 7 Headquarters, 615 Erie Boulevard West, Syracuse, New York 13204-2400.
  5. 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.

For the New York State Department
of Environmental Conservation
/s/
By: Erin M. Crotty, Commissioner

Albany, New York
March 26,2003

To: P-I-E Nationwide, Inc.
Attn: Larry L. Eckert, Treasurer
PO Box 23938
4741 Atlantic Boulevard, Suite C
Jacksonville, Florida 32241-3938

Jennifer L. Powell, Esq.
Assistant Regional Attorney
NYS Department of Environmental Conservation
Region 7
615 Erie Boulevard West
Syracuse, New York 13204-2400

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 -

P-I-E Nationwide, Inc.
PO Box 23938
4741 Atlantic Boulevard, Suite C
Jacksonville, Florida 32241-3938

RESPONDENT

Summary Report

Case No.: 7-020338

Proceedings

With a cover letter dated December 7, 2001, the Region 7 Staff of the Department of Environmental Conservation (the Department Staff or Staff) duly served a notice of hearing and complaint upon P-I-E Nationwide, Inc., 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 January 18, 2002 at 11:00 a.m. at the Department's Region 7 Offices in Syracuse. 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 its right to a hearing.

The December 7, 2001 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 7200 Schuyler Road in the Town of Dewitt, Onondaga County, New York. The Respondent allegedly violated §612.2 by not registering the facility before September 2, 2001. For the first cause of action, the Department requested a civil penalty of $7,500. In the second cause of action, the Department asserted that the Respondent failed to conduct a tightness test of Tank 002 and its connecting piping system by December 1, 1994 in violation of §613.5. For the second cause of action, the Department requested a civil penalty of $10,000.

With a cover letter dated February 18, 2003, the Staff filed a motion dated May 6, 2002, for a default judgment against the Respondent. In the motion, the Staff requested:

  1. Finding that the Respondent P-I-E Nationwide, Inc. violated §612.2 and §613.5 by failing to register its petroleum bulk storage facility at 7200 Schuyler Road in the Town of Dewitt, Onondaga County, New York, and by failing to conduct a tightness test of Tank 002 by December 1, 1994;
  2. Assessing a civil penalty of $17,500.00 against the Respondent;
  3. Directing the Respondent to comply with 6 NYCRR §612.2 by registering its petroleum bulk storage facility within 30 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 file an answer to the complaint and to appear at the prehearing conference scheduled in the complaint. The motion was mailed to the Respondent. According to the Staff's cover letter, however, the Respondent refused delivery of the motion. No response to the motion has been received by this office or by DEC Staff.

Findings of Fact

On December 7, 2001, Diane L. Dohn, served the notice of hearing and complaint in this matter upon P-I-E Nationwide, Inc., by certified mail return receipt requested. The notice of hearing and complaint was sent to Larry L. Ecker, as the corporation's treasurer, at P.O. Box 23938, 4741 Atlantic Boulevard, Suite C, Jacksonville, Florida 32241-3938.

The time for the Respondent to serve an answer to the complaint expired on January 6, 2002, and was not extended by consent of DEC Staff.

The notice scheduled a prehearing conference for January 18, 2002 at 11:00 a.m. at the Department's Region 7 Offices.

The Respondent did not file an answer to the complaint, and the Respondent did not appear at the prehearing conference on January 18, 2002.

Discussion

According to Department's hearing regulations, a Respondent's failure to file a timely answer constitutes a default and a waiver of the Respondent's right to a hearing. Furthermore, a Respondent's failure to appear at a prehearing conference also 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. Dohn's December 7, 2001 affidavit of service demonstrates service of the notice of hearing and complaint upon the Respondent in a manner consistent with the requirements outlined in §622.3(a)(3).

The affirmation of DEC Staff counsel Jennifer L. Powell, Assistant Regional Attorney, attached to the default motion, demonstrates that the Respondent neither filed an answer to the complaint by January 6, 2002, nor appeared at the prehearing conference on January 18, 2002.

Department Staff has provided a proposed order with its motion papers.

Conclusion

The Respondent has defaulted on its obligation to answer the complaint in this matter, and to appear at the prehearing conference. As a result, P-I-E Nationwide, Inc. has waived its right to a hearing.

Recommendation

The attached 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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