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Kroboth, Alfred - Order, October 9, 2003

Order, October 9, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the matter of the alleged violation of Article 17 of the New York State
Environmental Conservation Law ("ECL")

- by -

ALFRED KROBOTH,
Respondent.

ORDER

Case No: R4-2001-1011-125

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint, dated April 22, 2003, the New York State Department of Environmental Conservation ("DEC" or the "Department") Region 4 Staff commenced an administrative enforcement proceeding against respondent Alfred Kroboth ("Kroboth").
  2. Kroboth is subject to Order on Consent R4-2002-1011-125, effective date November 6, 2001, which was modified on April 26, 2002 ("Modification of Order on Consent").
  3. The Order on Consent states that Kroboth owns and operates a petroleum bulk storage facility known as "ARDCO," located at Route 20, P.O. Box 237, West Lebanon, New York. In the Order on Consent, Kroboth agreed, among other things, to submit a site investigation report to the Department. Department Staff's Complaint alleges that Kroboth failed to submit the site investigation report to the Department, in violation of the Order on Consent.
  4. On May 6, 2003, the Department served the Notice of Hearing and Complaint upon Kroboth by certified mail/return receipt. Service of process was accomplished in accordance with section 622.3(a)(3) of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR").
  5. The Notice of Hearing directed that Kroboth file an answer with the Department within 20 calendar days of Kroboth's receipt of the Notice of Hearing and Complaint. The Notice of Hearing also stated that failure to answer would constitute a default and waiver of the right to a hearing. The time for Kroboth to serve an answer expired on or about May 26, 2003, and no answer has been received by Department Staff.
  6. The Notice of Hearing also required Kroboth to appear for a pre-hearing conference pursuant to 6 NYCRR 622.8. The pre-hearing conference was scheduled for 10:00 a.m. on May 21, 2003 at the Department's Region 4 offices at 1150 North Westcott Road, Schenectady, New York. Kroboth failed to appear at the pre-hearing conference.
  7. Failure to answer a complaint, or to appear for a prehearing conference, are grounds for entry of a default judgment pursuant to 6 NYCRR 622.15, and an order assessing Kroboth penalties and/or directing other relief may be issued.
  8. Department Staff filed a motion for default judgment, dated July 7, 2003, with respect to Kroboth's failure to answer the Complaint, and failure to appear at the pre-hearing conference. Kroboth did not reply to the motion for default judgment.
  9. I adopt the conclusions of the Administrative Law Judge's report, attached hereto.

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

  1. Department Staff's motion, pursuant to 6 NYCRR 622.15, for a default judgment is granted.
  2. Pursuant to 6 NYCRR 622.15, Kroboth is adjudged to be in default and has waived his right to a hearing in this enforcement proceeding. Accordingly, the Department's allegations against Kroboth are deemed to have been admitted by Kroboth.
  3. As set forth in detail in the Complaint, Kroboth violated Paragraph 3(A) of the Modification of Order on Consent's Schedule of Compliance and, as a result, is subject to the $2,000 suspended portion of the agreed-upon penalty.
  4. Kroboth's violation of Paragraph 3(A) of the Modification of Order on Consent's Schedule of Compliance is a continuing violation for each day Kroboth fails to comply. ECL 71-1929(1) provides for a maximum penalty of $25,000 per day for violation of an order on consent.
  5. As a result of Kroboth's violation of the Modification of the Order on Consent's Schedule of Compliance, within thirty days of service of this Order, Kroboth shall pay the $2,000 penalty as required in Paragraph I of the Order on Consent, as well as a $4,000 civil penalty.
  6. The penalties set forth in Paragraph V above shall be paid by certified check, cashier's check, or money order to "NYSDEC," Attention: Regional Attorney, Region 4, New York State Department of Environmental Conservation, 1150 North Westcott Road, Schenectady, New York 12306.
  7. Within ninety days of service of this Order, Kroboth shall complete the approved site investigation and submit a remedial plan to Department Staff for review and approval. The remedial plan shall be based upon achieving soil standards in Technical and Administrative Guidance Memorandum ("TAGM") 4046 and, if applicable, groundwater standards set forth in 6 NYCRR Part 703.
  8. Within thirty days of Department Staff's approval of the remedial plan, Kroboth shall commence implementation of the remedial plan in accordance with the approved schedule.
  9. To the extent that any measures undertaken pursuant to the remedial plan require treatment and discharge of waste waters to groundwaters or surface waters of New York State, or operation of a point source of air emissions, Kroboth shall be authorized to undertake such treatment and discharge in accordance with the general conditions attached as Appendix A, and the applicable standards contained in Appendix B of the Order on Consent, notwithstanding any otherwise applicable requirements.
  10. No discharge as part of remediation of this portion of the facility shall exceed the air and water effluent limits listed in Appendix B.
  11. Petroleum-contaminated soil found and removed during the site investigation may be stored on the facility premises for up to sixty days upon the approval of Department Staff and in accordance with good engineering practices.
  12. All communications between Kroboth and Department Staff concerning this Order shall be made to: Regional Director, Region 4, New York State Department of Environmental Conservation, 1150 North Westcott Road, Schenectady, New York 12306.
  13. The provisions, terms and conditions of this Order shall bind Kroboth, all agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of Kroboth.

For the New York State Department
of Environmental Conservation

_____________/s/__________________
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
October 9, 2003

Alfred Kroboth
1567 Route 20
West Lebanon, New York 12195

Alfred Kroboth
12750 79th Avenue
Sebastian, Florida 32958-3692

Richard Ostrov, Esq.
Assistant Regional Attorney
New York State Department
of Environmental Conservation
Region 4
1150 North Westcott Road
Schenectady, New York 12306

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION


In the Matter of the Alleged Violation of Article 17 of the New York State
Environmental Conservation Law ("ECL")

- by -

ALFRED KROBOTH,
Respondent.

Summary Report on
Motion for Default
Judgment

File No. R4-20011011-125

August 25, 2003

PROCEEDINGS

Pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Section 622.15, Staff of the New York State Department of Environmental Conservation ("Department Staff") has moved for a default judgment against the Respondent, Alfred Kroboth. Department Staff made its motion on July 25, 2003 by filing the following papers with the Department's Office of Hearings and Mediation Services:

  1. A Notice of Motion for Default Judgment, dated July 7, 2003;
  2. The Affirmation of Richard Ostrov In Support of Motion for Default Judgment (the "Ostrov Affirmation"), dated July 7, 2003;
  3. A proposed Order; and
  4. An Affidavit of Service dated July 22, 2003.

On July 21, 2003, Department Staff personally served the motion upon Respondent.

On or about April 22, 2003, Staff mailed to Respondent via certified mail, restricted delivery, and return receipt requested, a Notice of Hearing and Complaint, both dated April 22, 2003. The receipt for certified mail was signed by Respondent on May 6, 2003. Pursuant to 6 NYCRR Section 622.6, the time for Respondent to answer or otherwise move with respect to the Complaint expired on or about May 26, 2003. The Ostrov Affirmation states that no answer to the Complaint was received.

Respondent is subject to Order on Consent R4-2002-1011-125, effective date November 6, 2001, which was modified on April 26, 2002 ("Modification of Order on Consent"). The Order on Consent states that Respondent owns and operates a petroleum bulk storage facility known as "ARDCO," located at Route 20, P.O. Box 237, West Lebanon, New York. In the Order on Consent, Respondent agreed, among other things, to submit a site investigation report to the Department. Department Staff's Complaint alleges that Respondent failed to submit the site investigation report to the Department, in violation of the Order on Consent.

The Notice of Hearing required that the Respondent attend a pre-hearing conference, pursuant to 6 NYCRR Section 622.8. The Ostrov Affirmation states that Respondent failed to appear at the pre-hearing conference, which was scheduled for 10:00 a.m. on May 21, 2003, at the Department's Region 4 offices at 1150 North Westcott Road, Schenectady, New York.

Pursuant to 6 NYCRR Section 622.6(c)(3), the time for Respondent to file a response to the Department's motion for a default judgment expired on or about July 26, 2003. No response has been received from Respondent to the Department's motion as of the date of this Summary Report.

Default Procedures

Section 622.15 of 6 NYCRR, "Default procedures," provides in pertinent part:

  1. A respondent's failure to file a timely answer . . . constitutes a default and a waiver of respondent's right to a hearing . . ..
  2. The motion for a default judgment may be made orally on the record or in writing and 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.
  3. Upon a finding by the ALJ that the requirements of subdivision (b) of this section have been adequately met, the ALJ will submit a summary report, which will be limited to a description of the circumstances of the default, and the proposed order to the commissioner.

The following Findings are based upon the papers submitted, as identified above.

FINDINGS

  1. The Notice of Hearing and Complaint were sent certified mail, restricted delivery and return receipt requested, addressed to Alfred Kroboth, 12750 79th Avenue, Sebastian, Florida 32958-3692.
  2. The United States Postal Service returned the return receipt for certified mail, signed by Alfred Kroboth on May 6, 2003. A copy of the return receipt is attached as Exhibit B to the Ostrov Affirmation.
  3. No response to the Complaint has been received.
  4. Respondent is subject to Order on Consent R4-2002-1011-125, effective date November 6, 2001, which was modified on April 26, 2002 ("Modification of Order on Consent").
  5. The Order on Consent states that Respondent owns and operates a petroleum bulk storage facility known as "ARDCO," located at Route 20, P.O. Box 237, West Lebanon, New York. In the Order on Consent, Respondent agreed, among other things, to submit a site investigation report to the Department. Department Staff's Complaint alleges that Respondent failed to submit the site investigation report to the Department, in violation of the Order on Consent.
  6. The Order on Consent provides for a $5,000 penalty. Respondent paid $3,000 of the penalty, and the remaining $2,000 was suspended so long as Respondent complied with the Order on Consent.
  7. The Notice of Hearing and Complaint required Respondent to appear at a pre-hearing conference on May 21, 2003 at the Department's Region 4 offices at 1150 North Westcott Road in Schenectady, New York. Respondent failed to appear at the pre-hearing conference.
  8. On July 21, 2003, this motion was personally served upon Respondent.
  9. As of July 7, 2003 (the date of the motion papers), Respondent had not served an answer or otherwise moved with respect to the Complaint.
  10. No response to the Department's motion has been filed.
  11. The requirements for a default judgment have been met adequately as prescribed by 6 NYCRR Section 622.15(b).

CONCLUSION

Respondent violated a material provision of the Order on Consent by failing to submit the site investigation report to the Department. The motion for a default judgment can be granted as proposed. This Summary Report and Proposed Order (attached hereto) are referred to the Commissioner for final determination.

/s/
Maria E. Villa
Administrative Law Judge

Albany, New York
August 25, 2003

Alfred Kroboth
1567 Route 20
West Lebanon, New York 12195

Alfred Kroboth
12750 79th Avenue
Sebastian, Florida 32958-3692

Richard Ostrov, Esq.
Assistant Regional Attorney
New York State Department
of Environmental Conservation
Region 4
1150 North Westcott Road
Schenectady, New York 12306

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