NY.gov Portal State Agency Listing Search all of NY.gov
D E C banner
D E C banner

Disclaimer

The New York State Department of Environmental Conservation has added a link to a translation service developed by Microsoft Inc., entitled Bing Translator, as a convenience to visitors to the DEC website who speak languages other than English.

Additional information can be found at DEC's Language Assistance Page.

H.S. Finishing Products Corp - Order, February 11, 2003

Order, February 11, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

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

by

H. S. FINISHING PRODUCTS CORPORATION,

Respondent.

ORDER

Case No.: CO 2-20000407-2292

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint, dated May 22, 2000, the New York State Department of Environmental Conservation (DEC) Staff commenced an administrative enforcement proceeding against the Respondent.
  2. The Respondent, H.S. Finishing Products Corporation (H.S. Finishing), was served with a Notice of Hearing and Complaint on June 2, 2000.
  3. Service of process was accomplished in accordance with 6 NYCRR Section 622.3 and CPLR Section 2103.
  4. Respondent's time to serve an Answer to the Complaint expired on June 22, 2000.
  5. DEC Staff made a Motion for Default, dated June 29, 2000, outlining this failure.
  6. Staff's motion is addressed in the attached summary report of Administrative Law Judge Edward Buhrmaster, which I adopt as my own.
  7. According to Section 622.15 of 6 NYCRR, the Respondent is in default and has waived its right to a hearing in this enforcement proceeding. Therefore, DEC Staff's allegations against the Respondent in its Complaint are deemed to have been admitted by Respondent.
  8. The Respondent violated Article 27 of the Environmental Conservation law and the regulations promulgated thereunder. More specifically, H.S. Finishing was in violation of the following regulations at 6 NYCRR:

    a.. 372.2(a)(2) - Failure to make a hazardous waste determination.

    b. 373-3.9(d)(1) - Open containers in accumulation and storage areas.

    c. 373-3.9(f) - Failure to store ignitable waste 50 feet away from property line.

    d. 372.2(b)(5)(i)/372.2(b(5)(iii) - Illegal disposal of hazardous waste to an unauthorized facility without using a manifest.

    e. 373-3.2(g) - Failure to have Personnel Training program.

    f. 373-3.3(b) - Failure to maintain and operate the facility to minimize the possibility of fire, explosion or release of hazardous constituent to the environment.

    g. 373-3.4 - Failure to develop a contingency plan.

    h. 373-1.2 - Acted as an illegal treatment facility by drying paint stripped with methylene chloride in oven and disposing in regular trash.

    i. 372.2(a)(8)(i)(a)(2) - Failure to mark the containers in accumulation area with the words "Hazardous Waste" and other words identifying the contents.

    j. 373-1.1(d)(1)(iv)(d) - Failure to put accumulation start date on containers in storage.

    k. 373-3.9(d)(3) - Failure to mark the containers in storage area with the words "Hazardous Waste" and other words identifying the contents.

    l. 373-3.9(e) - Failure to inspect hazardous waste storage area at least weekly.

    m. 373-3.7(c)(1) - Failure to have a closure plan for generator over a sole-source aquifer.

    n. 372.2(b)(5)(ii) - Use of a transporter that is not authorized under Part 364 to transport hazardous waste.

    o. 372.2(b)(4)(ii) - Failure to comply with the requirements of section 372.6 for interstate shipments.

    p. 373-3.3(e) - Failure to provide personnel involved in hazardous waste operations with immediate access to an internal alarm or emergency communication device.

    q. 373-3.3(g)(1) - Failure to make arrangements with local authorities.

    r. 376.1(g)(1)(I) - Failure to determine if the waste has to be treated before it can be land disposed.

    s. 376.1(h)(1) - Failure to determine each EPA hazardous waste number applicable to the waste in order to determine the applicable treatment standards under section 376.4 of this part.

    t. 373-3.29(h)(2)(i)(c) - Failure to meet RCRA Air Emission standards for a container (dumpster) greater than 119 gallons capacity.

    u. 372.2(c)(1)(iii) - Failure to keep records of any test results, waste analyses, or other determination made in accordance with Part 372.2(a)(2) for at least three years.

    v. 372.2(c)(1)(iv) - Failure to furnish upon request, all records required under subdivision 372.2, or to make available at a reasonable time for inspection.

    w. 372.2(b)(2)(i) - Failure to have written communication that the designated treatment, storage, or disposal facility is an authorized facility.

    x. 372.2(b)(2)(ii) - Failure to have written communication that the designated transporter is authorized.

    y. 372.2(c)(2) - Failure to submit an annual report for all prior years.

    z. 376.1(g)(1)(vi) - Failure to keep records of waste determination for waste restricted from land disposal.

    aa. 376.1(g)(1)(viii) - Failure to retain LDR notice for manifest #NJA2887238.

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

  1. No hearing is required to determine whether Respondent committed the above violations. The Respondent is hereby determined to be in default for having failed to answer the complaint and is found to have violated various provisions of ECL Article 27 and of 6 NYCRR Parts 372, 373 and 376, which 27 provisions are described and set forth in paragraph "8" of this Order.
  2. Respondent shall pay to the Department a penalty in the amount of Six Hundred and Seventy Five Thousand Dollars ($675,000), Twenty Five Thousand Dollars ($25,000) for each of the twenty-seven above-referenced violations, such penalty to be due 30 days after service of this Order on the Respondent. Payment of this penalty shall be by cashier's check, certified check or Money Order drawn to the order of "NYSDEC" and delivered to: G. Stephen Hamilton, Esq., Staff Attorney, Environmental Enforcement, New York State Department of Environmental Conservation, 625 Broadway, 14th Floor, Albany, NY 12233-5500.
  3. Respondent shall come into compliance with the requirements of the law and regulations cited herein within 30 days after the effective date of this Order.
  4. All communications from the Respondents to the Department concerning this Order shall be made to the Department's Hazardous Waste Compliance Counsel, 625 Broadway, Albany, New York 12233-5500.
  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

Dated: Albany, New York
February 11, 2003

TO: Mr. Mark Packer, President
H.S. Finishing Products Corporation
1768-84 Dean Street
Brooklyn, New York 11233

G. Stephen Hamilton, Esq.
New York State Department of
Environmental Conservation
625 Broadway
Albany, New York 12233-5500

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

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

by:

H.S. FINISHING PRODUCTS CORPORATION,

Respondent.

DEFAULT SUMMARY REPORT

Case No.: CO2-20000407-2292

Proceedings

On June 2, 2000, Staff of the Department of Environmental Conservation ("DEC") served a Notice of Hearing and Complaint upon Mark Packer, president of Respondent H.S. Finishing Products Corp. The notice announced that pursuant to Section 622.4 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR 622.4), the Respondent must, within 20 days of receiving the Notice of Hearing and Complaint, serve upon DEC Staff an answer signed by the Respondent, the Respondent's attorney, or other authorized representative.

By written motion dated June 29, 2000, DEC Staff counsel G. Stephen Hamilton requested that a default judgment be issued against the Respondent and an order be issued compelling the Respondent to remedy the violations cited in the Complaint and pay the maximum penalty allowable under law. The motion was based on the Respondent's failure to submit an answer within 20 days of service of the complaint's service.

By letter dated July 17, 2000, Staff counsel Hamilton advised DEC's chief administrative law judge that Mr. Packer had called Mr. Hamilton on July 14 to request an extension of time in which to answer the Complaint, and that Mr. Hamilton had agreed to extend the time to answer until August 1, 2000. As a result of this agreement, Mr. Hamilton requested that the default motion be placed on hold, to be reopened should the Respondent fail to provide an answer by August 1, 2000, or should any provided answer be deemed insufficient.

By letter dated November 19, 2001, Staff counsel Hamilton requested that I decide the default motion based on the failure of attempts to resolve this matter. Mr. Hamilton wrote that a settlement conference was held with Mr. Packer on September 13, 2000, and that by letter of July 19, 2001, DEC Staff had afforded the Respondent a last chance to resolve the matter with a consent order. As of November 19, 2001, wrote Mr. Hamilton, the Respondent had made no response to the Department's settlement offer.

Findings of Fact

  1. On June 2, 2000, the Notice of Hearing and Complaint in this matter were served upon the Respondent, H.S. Finishing Products Corp., through personal service of a copy of the papers upon Mark Packer, corporation president, by DEC Environmental Conservation Officer Jonathan D. Ryan. [See Exhibit "A" to the default motion, ECO Ryan's affidavit of personal service.] Service was completed at the corporation's business address of 1768-84 Dean Street, Brooklyn.
  2. The Notice of Hearing (included with the Complaint as Exhibit "B" to the default motion) advised the Respondent that, pursuant to 6 NYCRR 622.4, it was obliged to serve an answer upon DEC Staff within 20 days of receipt of the Notice of Hearing and Complaint, and that failure to make timely service of an answer would result in a default and waiver of the Respondent's right to a hearing.
  3. The Respondent's time for serving an answer expired on June 22, 2000. As of June 29, when the default motion was made, the Respondent had not filed a timely answer.

Discussion

According to the DEC'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. [See 6 NYCRR 622.15(a).] In such an event, DEC Staff may move for a default judgment, such motion to 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 file a timely answer; and

(3) a proposed order. [See 6 NYCRR 622.15(b).]

ECO Ryan's affidavit of personal service adequately demonstrates service of the Notice of Hearing and Complaint on June 2, 2000, because service was made upon an officer of the Respondent corporation. [See Civil Practice Law and Rules Section 311(a)(1) and 6 NYCRR 622.3(a)(3).] The affirmation of DEC Staff counsel G. Stephen Hamilton, attached to the default motion, indicates that no answer was filed in a timely manner, despite the warning in the Notice of Hearing that failure to file a timely answer would result in a default.

Although Mr. Hamilton extended until August 1, 2000, the time for the Respondent to answer, this extension was not sought or granted until after the Respondent had already defaulted on its obligation to provide an answer within 20 days of its receipt of the Notice of Hearing and Complaint.

No response to the default motion was filed with this office after the motion was first made in June of 2000, or after the motion was renewed in November 2001.

Conclusion

The requirements of 6 NYCRR 622.15(b) for a motion for a default judgment have been adequately met. The Respondent has defaulted and waived its right to a hearing in this matter.

Recommendation

The attached order confirming the default should be signed and served upon the Respondent. It is substantively identical to the proposed order provided by DEC Staff.

____________/s/_____________
Edward Buhrmaster
Administrative Law Judge

  • PDF Help
  • For help with PDFs on this page, please call 518-402-9003.
  • Contact for this Page
  • Office of Hearings and Mediation Services
    NYS DEC
    625 Broadway, 1st Floor
    Albany, New York 12233-1550
    518-402-9003
    Send us an email
  • This Page Covers
  • Page applies to all NYS regions