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Fuller, Julia - Order, March 26, 2003

Order, March 26, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 17 of the Environmental Conservation Law of the State of New York
and of Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York, Parts 612 and 613

-By-

JULIA FULLER,

Respondent.

ORDER

DEC File No. 7-459259

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated July 26, 2001, duly served on Respondent herein on July 27, 2001, a pre-hearing conference was scheduled to be held on August 22, 2001. The aforementioned pre-hearing conference was adjourned and later rescheduled for and held on December 18, 2001. The Department of Environmental Conservation Region 7 staff ("Department staff") appeared by Jennifer L. Powell, Assistant Regional Attorney, Region 7. Respondent Julia Fuller did not appear, either personally or by representative, and no Answer to the Complaint was filed on her behalf.
  2. Upon the Notice of Motion and Motion for Default herein dated May 6, 2002, the affidavit of Jennifer L. Powell in support of the Motion, sworn to on May 6, 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). The Respondent is, therefore, in default under the provisions of 6 NYCRR 622.15(a) and has waived her right to a hearing in this matter.
  3. I further find that the Respondent has violated 6 NYCRR 612.2 and 613.5 by failing to register her petroleum bulk storage facility and to tightness test her petroleum bulk storage tank No. 001.

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

  1. The Respondent, Julia Fuller, is hereby determined to have violated ECL §17-1009 and 6 NYCRR §612.2 for failure to have registered her facility and to have violated ECL §17-1005 and 6 NYCRR §613.5 for failure to tested the tightness of petroleum bulk storage tank No. 001. She is further determined to be in default and to have thereby waived her right to a hearing in this proceeding.
  2. The Respondent is hereby assessed a civil penalty of $17,500.00 for the violations described above which penalty the Respondent is directed to pay within thirty days of the date hereof by cashiers or certified check or money order payable to the order of "NYSDEC" and delivered to: Kenneth Lynch, Regional Director, Region 7, NYS DEC Regional Headquarters, 615 Erie Blvd. West, Syracuse, N.Y. 13204-2400.
  3. The Respondent is hereby directed to comply with 6 NYCRR §612.2 and §613.5 by registering her petroleum bulk storage facility and tightness testing petroleum storage tank No. 001 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 Kenneth Lynch, 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, her 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

Dated: March 26, 2003
Albany, New York

To: Julia Fuller
454 West Genesee Road
P.O. Box 117
Plainsville, New York 13137

Jennifer L. Powell, Esq.
Assistant Regional Attorney
New York State 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

the Alleged Violation of Article 17 of the Environmental Conservation Law of the State of New York
and of Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York, Parts 612 and 613

-By-

JULIA FULLER,

Respondent.

DEFAULT SUMMARY REPORT

DEC File No 7-459259

Procedural History

By Notice of Motion dated May 6, 2002, Staff of the Department of Environmental Conservation (DEC or Department) seeks a judgment by default against Respondent for alleged violations of Sections 17-1005 and 17-1009 of the Environmental Conservation Law (ECL) and implementing regulation Sections 612.2 and 613.5 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR). DEC alleges that Respondent violated the aforementioned statutory and regulatory provisions by failing to register a petroleum bulk storage facility owned by her, located at 789 West Genesee Road in the Town of Plainville, Onondaga County, New York, and failing to test an underground petroleum storage tank located at the site which has a capacity of greater than 1,100 gallons and its connecting piping for tightness and to submit the results of the tests to the Department.

In support of its Motion for Default Judgment, DEC submitted an affidavit by Assistant Regional Attorney Jennifer L. Powell; a copy of a Notice of Hearing and Complaint, dated July 26, 2001, alleging the facts in support of the aforementioned violations of ECL 17-1005 and ECL 17-1009 and 6 NYCRR 612.2 and 6 NYCRR 613.5 by the Respondent, and notifying the Respondent of the date, time and place of a pre-hearing conference scheduled in the matter; an affidavit of service by certified mail of the Notice of Hearing and Complaint on Respondent on July 26, 2001, and sworn to that same day by Diane L. Dohn; a copy of US Postal Service Certified Mail Receipt as well as Domestic Return Receipt signed by Julia Fuller and dated July 27, 2001; a copy of a letter dated August 13, 2001, from Assistant Regional Attorney Jennifer L. Powell to the Respondent regarding a proposed Order on Consent and a request for financial disclosure by the Respondent; a copy of a letter dated December 4, 2001, from Assistant Regional Attorney Jennifer L. Powell to the Respondent advising her that the pre-hearing conference in the matter had been rescheduled to December 18, 2001, at the Department's Region 7 Headquarters in Syracuse; a proposed Order; an affidavit of service by certified mail of the instant Motion for Default on Respondent on May 6, 2002, and sworn to that same day by Diane L. Dohn; and the original US Postal Service Domestic Return Receipt signed by Julia Fuller and dated May 8, 2002. As relief, the Motion for Default Judgment seeks an Order, pursuant to 6 NYCRR 622.15, to be issued by the Commissioner in favor of the Department Staff against Respondent (1) declaring Respondent in default in the instant proceedings; (2) declaring Respondent in violation of 6 NYCRR 612.2 and 613.5; (3) ordering Respondent to pay a civil penalty in the amount of $17,500.00; (4) ordering Respondent, within 30 days of the effective date of the Order, to comply with 6 NYCRR 612.2 and 613.5 by registering her petroleum bulk storage facility and tightness testing the underground petroleum bulk storage tank located therein; (5) directing that all communications by the Respondent in this matter with the Department be made to the Regional Director of the Department's Region 7 Headquarters; and (6) directing that the terms and conditions of the Order are to bind the Respondent, her agents, servants, employees, successors and assigns, and all persons, firms and corporations acting for or on behalf of the Respondent.

As of the date of the Motion for Default Judgment, the Respondent had failed to serve an Answer to the Complaint and, moreover, failed to appear at the pre-hearing conference scheduled in the matter on December 18, 2001.

Default Procedures

Section 622.15, "Default Procedures" provides, in pertinent part, that: "(b) The motion for a default judgment .... must 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."

Findings of Fact

The following Findings of Fact are based upon the papers submitted, as identified above:

  1. Respondent, Julia Fuller, is the owner of a petroleum bulk storage (PBS) facility located at 789 West Genesee Road in the Town of Plainville, Onondaga County, New York, which facility is identified by PBS Number 7-459259.
  2. At the aforementioned PBS facility, the Respondent owns PBS tank(s) which have a combined capacity in excess of 1,100 gallons.
  3. ECL 17-1009 and 6 NYCRR 612.2 require that the owner of a PBS facility, such as that owned by the Respondent, register it with the Department.
  4. According to Department records, the Respondent's PBS facility's registration expired on August 23, 1993. The Department does not have a current registration on file for the Respondent's PBS facility. The Respondent has not renewed the facility's registration.
  5. The foregoing conduct by the Respondent constitutes violations of ECL 17-1009 and 6 NYCRR 612.2.
  6. The Respondent is the owner, at the aforementioned PBS facility, of an underground petroleum storage tank known as Tank No. 001, with a capacity of 2,000 gallons.
  7. ECL 17-1005 and 6 NYCRR 613.5 require that the owner of an underground petroleum storage tank with a capacity greater than 1,100 gallons test such tank and its connecting piping system for tightness and submit the results to the Department for approval.
  8. Section 613.5 of 6 NYCRR sets forth the schedule for conducting tightness testing. Department records indicate that such tightness testing was due for the aforementioned Tank No. 001 on December 27, 1987. Respondent has not conducted such tightness testing and submitted the results to the Department.
  9. The foregoing conduct by the Respondent constitutes violations of ECL 17-1005 and 6 NYCRR 613.5.
  10. ECL 71-1929 provides for a penalty of up to twenty-five thousand dollars ($25,000) per day for each violation of Titles 1 through 11 inclusive and Title 19 of ECL Article 17, or the rules or regulations promulgated pursuant thereto by the Commissioner of the Department.
  11. By Notice of Hearing and Complaint dated July 26, 2001, and pursuant to the authority of 6 NYCRR 622.3, the Department commenced an administrative proceeding against the Respondent asserting the aforementioned violations of ECL 17-1005, ECL 17-1009, 6 NYCRR 612.2 and 6 NYCRR 613.5 and seeking an Order of the Commissioner finding the Respondent in such violation of the ECL and its implementing regulations; assessing civil penalties against the Respondent in a total amount of $17,500; directing the Respondent to make application to register her facility with the Department within 30 days of the effective date of the Commissioner's Order; and, directing the Respondent to either conduct the required tightness testing of Tank No. 001 and to report the results of such testing to the Department, or, permanently close the tank, within 30 days of the effective date of the Commissioner's Order.
  12. As evidenced by the affidavit of Diane L. Dohn, the Respondent was served with the aforementioned Notice of Hearing and Complaint by certified mail with US Postal Service Domestic Return Receipt No. 7000 0600 0021 8629 8218 requested, on July 26, 2001.
  13. On July 27, 2001, the aforementioned Domestic Return Receipt was signed by one Julia Fuller of 454 West Genesee Road, Plainville, New York 13137.
  14. The Notice of Hearing, annexed to the Complaint, directed that a pre-hearing conference would be held in the matter at 10:00 AM, August 22, 2001, at the Department's Region 7 Headquarters, 615 Erie Boulevard West, Syracuse, New York 13204-2400.
  15. As indicated in the Affidavit of Jennifer L. Powell, dated May 6, 2002, the Respondent contacted the Department by telephone on August 13, 2001, to discuss the possible disposition of the matter through an Order on Consent, and the pre-hearing conference scheduled for August 22, 2001, was adjourned.
  16. Inasmuch as settlement discussions were unavailing, the pre-hearing conference was rescheduled for December 18, 2001, and the Respondent was so advised by letter from the Department dated December 4, 2001. The Respondent failed to appear at the pre-hearing conference, nor did anyone else appear on her behalf.
  17. In accordance with 6 NYCRR 622.4(a), an Answer to the Complaint was due within 20 days after December 4, 2001. To date, no Answer has been received from or on behalf of the Respondent.
  18. The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR section 622.15(b).

Conclusion

The Motion for Default Judgment should be granted. This Summary Report and Staff's proposed Order (attached hereto) can be referred to the Commissioner for final determination.

_____________/s/_____________
Richard R. Wissler
Administrative Law Judge

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

Julia Fuller
454 West Genesee Road
P.O. Box 117
Plainville, New York 13137

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