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Newburgh Housing Authority - Order, November 28, 2000

Order, November 28, 2000

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 Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

by

NEWBURGH HOUSING AUTHORITY,
Respondent.

ORDER

Case No. 3-600453

WHEREAS:

  1. Pursuant to Part 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 duly served a Notice of Hearing and Complaint upon the Respondent, NEWBURGH HOUSING AUTHORITY, by certified mail, return receipt requested. The affidavit of April 3, 2000 states that the Respondent was served by placing a true and correct copy of the Notice of Hearing and Complaint in a secure postpaid wrapper addressed to Respondent and mailed to Respondent by certified mail return receipt requested. The associated return receipt indicates that the Notice of Hearing and Complaint were received by Respondent on April 5, 2000.
  2. The Complaint asserted one cause of action. On July 19, 1998, the registration for the Respondent's (3-600453) facility located at 162 Johnson Street, Newburgh, expired, and the Respondent has failed to voluntarily comply or submit clear evidence that this Petroleum Bulk Storage facility is in compliance. Respondent has failed to register its petroleum bulk storage facility. Respondent is in violation of 6 NYCRR Part 612.2.
  3. The Notice of Hearing and Complaint stated that a pre-hearing conference was scheduled to take place on April 28, 2000. The Notice included a statement that, pursuant to 6 NYCRR Part 622.15, a failure to timely answer or failure to attend a hearing or failure to attend a pre-hearing conference would result in a default under 6 NYCRR Part 622.15 and a waiver of Respondent's right to a hearing. Respondent failed to serve an answer and failed to appear at the pre-hearing conference. Accordingly, Department Staff's allegations against Respondent in its Complaint are deemed to have been admitted by the Respondent.

    Staff documents by affirmation of Benjamin A. Conlon that:

    1. Respondent failed to appear at the pre-hearing conference;
    2. Respondent failed to serve on the Department an answer within 20 days of its receipt of the Notice of Hearing and Complaint or otherwise timely manner;
    3. the penalty imposed is appropriate based on the violation(s) and the duration of the violation(s); and
    4. failure to answer a complaint or to appear at a pre-hearing conference are both grounds for a default judgment pursuant to 6 NYCRR Part 622.15.
  4. A copy of the motion and supporting papers were filed with the Office of Hearings and Mediation Services and the matter was assigned to Administrative Law Judge Molly T. McBride. Submitted herewith is a copy of the Default Summary Report (attached). I adopt the ALJ's report.

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

  1. Pursuant to 6 NYCRR Part 622.15, Respondent is found to be in default.
  2. Respondent, Newburgh Housing Authority, pay a civil penalty of Seven Thousand Five Hundred ($7,500.00) dollars within 30 days of service of this Order to the New York State Department of Environmental Conservation, 50 Wolf Road, Room 410A, Albany, New York 12233-5550 for the violation asserted in the complaint.
  3. Within thirty (30) days of the Order, Respondent shall submit to the Department a completed application to register its petroleum bulk storage facility located at 162 Johnson Street, Newburgh, as well as a certified check or money order in the amount of the registration fee(s) required under 6 NYCRR Part 612.3.
  4. Respondent permanently cease and desist from any and all future violations of the ECL and Rules and Regulations promulgated pursuant thereto.
  5. All communications from the Respondent to the Department concerning this order shall be made to the Department's Region 3 Director, 21 South Putt Corners Road, New Paltz, New York 12561-1696.
  6. The provisions, terms and conditions of this order shall bind the Respondent, his 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: John P. Cahill,
Commissioner

Dated: Albany, New York
November 28, 2000

TO:
Newburgh Housing Authority
40 Walsh Road
Newburgh, NY 12550

Benjamin Conlon, Esq.
NYSDEC - Rm 410A
50 Wolf Road
Albany, NY 12233-5550

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 Title 6 of NYCRR of the State of New York

BY

NEWBURGH HOUSING AUTHORITY

Respondent.

DEFAULT SUMMARY REPORT

DEC Case No. 3-600453

Proceedings

By notice of motion dated August 7, 2000, staff of the Department of Environmental Conservation (DEC or Department) sought a judgment by default against respondent concerning alleged violations of the Article 17 of the Environmental Conservation Law (ECL). It is alleged by DEC that respondent violated Article 17 of the ECL by failing to register its petroleum bulk storage facility in Newburgh, New York. In support of its motion, DEC submitted an affirmation of Assistant Regional Attorney Benjamin A. Conlon, affidavit of R. Daniel Bendell of the DEC, a proposed Order and proof of service of the Notice of Hearing and Complaint on the Respondent, by certified mail, return receipt on April 5, 2000.

As of the date of the Motion, Respondent has failed to appear and serve an Answer or otherwise move, although the time to do so expired on or about May 4, 2000. Further, Staff submitted proof that said Notice of Hearing and Complaint directed Respondent to appear for a pre-hearing conference on April 28, 2000. The affirmation of attorney Conlon indicates that Respondent failed to appear at said conference and did not obtain, nor request an adjournment of the conference.

Respondent was served with the Notice of Motion for Default Judgment and supporting papers on or about August 7, 2000. Respondent has not opposed the motion.

DEFAULT PROCEDURES:

New York Official Compilation of Codes, Rules and Regulations ("NYCRR") Part 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

  1. On April 5, 2000 Staff served a Notice of Hearing and Complaint on Respondent Newburgh Housing Authority. The time to Answer or otherwise move expired on May 4, 2000. No Answer has been served to date.
  2. The Notice of Hearing and Complaint served on April 5, 2000 directed Respondent to appear for a pre-hearing conference on April 28, 2000. No appearance was made by Respondent at said conference.
  3. Staff served the motion for default judgment and supporting papers on Respondent on or about August 7, 2000. Respondent has not opposed said motion and the time to serve papers in opposition expired on or about August 23, 2000.
  4. 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.

/s/
Molly T. McBride
Administrative Law Judge

Dated: November 17, 2000
Albany, New York

To:
Benjamin A. Conlon, Esq.
NYS Department of Environmental Conservation
Newburgh Housing Authority
40 Walsh Road
Newburgh, New York

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