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LePore, Mario - Order, November 12, 2003

Order, November 12, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 27 of the Environmental
Conservation Law of the State of New York and Parts 372 and 373 of Title 6
of the Official Compilation of Codes, Rules and Regulations of the State of
New York

-- By --

MARIO LEPORE,

Respondent

ORDER

Case No. R4-20030317-32

WHEREAS:

  1. Pursuant to section 622.15 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), Staff of the New York State Department of Environmental Conservation ("DEC Staff") duly served, by certified mail, a notice of hearing and complaint upon respondent Mario LePore.
  2. The notice of hearing and complaint included a statement that, pursuant to 6 NYCRR 622.15, failure to timely answer, failure to attend a hearing, or failure to attend a pre-hearing conference would result in a default under 6 NYCRR 622.15 and a waiver of respondent's right to a hearing.
  3. The affirmation of DEC Staff attorney G. Stephen Hamilton states that respondent was served a copy of the notice of hearing and complaint by certified mail return receipt requested. The associated return receipt indicates that the notice of hearing and complaint were received on June 16, 2003.
  4. In the complaint dated May 30, 2003, DEC Staff alleged two causes of action against respondent for violations alleged to occurred at respondent's facility located at 406 Pearl Street, Albany, New York. The two causes of action alleged in the complaint assert that respondent: (1) operated a new hazardous waste management facility without a permit in violation of 6 NYCRR 373-1.2(c) ; and (2) failed to make a hazardous waste determination relative to various bottles of lab chemicals in violation of 6 NYCRR 372.2(a)(2). Such alleged violations were discovered during an inspection of respondent's facility on January 7, 2003.
  5. Staff documents by affirmation of G. Stephen Hamilton, Esq. that:
    1. respondent failed to serve on the Department an answer within 20 days of receipt of the notice of hearing and complaint; and
    2. the penalty imposed is appropriate based on the violation and the duration of the violation.
    Failure to answer a complaint is grounds for a default judgment pursuant to 6 NYCRR 622.15. Accordingly, Department Staff's allegations against respondent in its complaint are deemed to have been admitted by respondent.
  6. A copy of the notice of motion and supporting papers seeking the judgment by default were filed with the Office of Hearings and Mediation Services and the matter was assigned to Administrative Law Judge (ALJ) P. Nicholas Garlick. A copy of the ALJ's default summary report is attached. I adopt the ALJ's report.

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

I. Pursuant to 6 NYCRR 622.15, respondent Mario LePore is found to be in default. Accordingly, the allegations contained in the complaint against respondent are deemed to have been admitted by respondent.

II. Respondent is adjudged to have (1) violated 6 NYCRR 373-1.2(c) by operating a new hazardous waste management facility without a permit, and (2) violated 6 NYCRR 372.2(a)(2) by failing to make a hazardous waste determination relative to various bottles of lab chemicals.

III. Respondent Mario LePore shall pay a civil penalty of Thirty-five Thousand Dollars ($35,000). Twenty-five Thousand Dollars ($25,000) is apportioned to respondent's violation of 6 NYCRR 373-1.2(c), and Ten Thousand Dollars ($10,000) is apportioned to respondent's violation of 6 NYCRR 372.2(a)(2). 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., Hazardous Waste Compliance Counsel, NYSDEC, 625 Broadway, Albany, NY 12233-1550.

IV. Respondent is hereby directed to cease and desist from any continuing or further violations and ordered to strictly comply with the ECL and the rules and regulations promulgated pursuant thereto.

V. All communications from respondent to the Department concerning this order shall be made to G. Stephen Hamilton, Esq., Hazardous Waste Compliance Counsel, NYSDEC, 625 Broadway, Albany, NY 12233-1550.

VI. The provisions, terms and conditions of this order shall bind respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of respondent.

For the New York State Department
of Environmental Conservation


/s/
By: Erin M. Crotty, Commissioner


Dated: Albany, New York
November 12, 2003

To: Mr. Mario LePore
Luther Road
East Greenbush, NY 12061

G. Stephen Hamilton, Esq.
Hazardous Waste Compliance Counsel
NYSDEC
625 Broadway
Albany, NY 12233-1550

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION


In the Matter of the Alleged Violations of Article 27 of the Environmental Conservation Law of the State of New York and Title 6, Parts 372 and 373 of the Official Compilation of Codes, Rules and Regulations of the State of New York

-- By --

MARIO LEPORE
Respondent

SUMMARY REPORT

Case No. R4-20030317-32

PROCEEDINGS

By complaint dated May 30, 2003, staff of the Department of Environmental Conservation ("DEC Staff") alleged two causes of action against Mario LePore ("Respondent") for violations alleged to have occurred at the Respondent's facility located at 406 Pearl Street, Albany, New York.

The two causes of action alleged in the complaint assert that the Respondent: (1) operated a new hazardous waste management facility without a permit in violation of section 373-1.2(c) of title 6 of Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"); and (2) failed to make a hazardous waste determination relative to various bottles of lab chemicals in violation of 6 NYCRR 372.2(a)(2). Such alleged violations were discovered during an inspection of the Respondent's facility on January 7, 2003.

By notice of motion dated August 20, 2003, DEC Staff sought a judgment by default against the Respondent for these alleged violations. In support of the motion, DEC Staff submitted an affirmation of DEC Staff Attorney G. Stephen Hamilton. The notice of hearing and complaint were received at the Respondent's address in East Greenbush, New York on June 16, 2003 (U.S.P.S. Article Number 7155 5474 4100 0779 8840). DEC Staff submitted an additional affirmation on September 30, 2003, which provided justification for the $35,000 penalty sought. DEC Staff allocated $25,000 of the penalty for the violation of section 373-1.2(c), and $10,000 for the violation of section 372.2(a)(2).

To date, Respondent has failed to serve an answer or otherwise move, although the time to do so expired on or about July 7, 2003.

The notice of motion for default judgment and supporting papers were mailed to Respondent on or about August 20, 2003. Respondent has not opposed the motion.

DEFAULT PROCEDURES

Section 622.15, "Default Procedures" provides, in pertinent part: "(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."

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

FINDINGS OF FACT

1. On or about June 16, 2003, DEC Staff served a notice of hearing and complaint on Respondent Mario LePore. The time to answer or otherwise move expired on or about July 7, 2003. No answer has been served to date.

2. Staff served the motion for default judgment and supporting papers on Respondent on or about August 20, 2003. Respondent has not opposed said motion. The time to serve papers in opposition expired on or about September 1, 2003.

3. The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR 622.15(b).

CONCLUSION

The motion for default judgment should be granted. This default summary report and Staff's proposed order (attached hereto) are referred to the Commissioner for final determination.

/s/
P. Nicholas Garlick
Administrative Law Judge

To: Mr. Mario LePore
Luther Road
East Greenbush, NY 12061

G. Stephen Hamilton, Esq.
NYSDEC
625 Broadway
Albany, NY 12233-1550

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