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Pedone, Jr., Angelo - Order, March 6, 1995

Order, March 6, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Alleged Violations of Articles 27 and 71 of the Environmental Conservation Law of the State of New York

by

ANGELO PEDONE JR.
WASTE SYSTEMS OF NEW YORK, INC.
RONALD RUGGIERO

Respondents.

ORDER

File No. R4-1671-94-05

  1. Pursuant to a Motion for Order Without Hearing dated December 14, 1994, DEC Staff commenced an administrative enforcement proceeding against the Respondents, Angelo Pedone Jr., Waste Systems of New York, Inc. and Ronald Ruggiero.
  2. The Department withdrew its proceeding against Waste Systems of New York, Inc. and Ronald Ruggiero. The only Respondent remaining is Angelo Pedone, Jr.
  3. Respondent Angelo Pedone, Jr. was served personally on December 20, 1994.
  4. The Respondent has declined to answer Department staff's Motion for Order without Hearing.
  5. With respect to such failure, Department staff made a Motion for Default Judgment, dated February 8, 1995.
  6. 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), Respondent is found to be in default and as having waived his right to a hearing in this enforcement proceeding and Department's staff allegations against Respondent in its Motion for Order without Hearing are deemed to have been admitted by Respondent.
  7. The Respondent violated ECL 27-0707 and 6 NYCRR Section 360-1.7(a)(1)(i) by operating a solid waste management facility without a permit.
  8. The Respondent is in continuing violation of ECL 27-0707 and 6 NYCRR Section 360-1.7(a)(1)(i) since March 21, 1994.

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

  1. The Respondent is found to be in violation of ECL 27-0707 and 6 NYCRR Section 360-1.7(a)(1)(i). The Respondent is assessed a civil penalty of $200,000 of which $50,000 is payable and $150.000 is suspended contingent upon compliance with the terms of this Order. The $50,000 shall be due and payable thirty (30) days after the service of a conformed copy of this Order on the Respondent.
  2. Within 30 days of service of this Order, the Respondent shall cease operations at the facility located at 131 Edison Ave., Schenectady, New York which includes the proper removal and disposal of all waste located at the facility.
  3. The Respondent, or any corporation of which he is a principle, shall not be issued any further permits, licenses, registrations or certificates by the Department.
  4. All communications between the Respondents and DEC concerning this Order shall be made to the Department's Region 4 Director, 1150 North Westcott Road, Schenectady, New York 12306.
  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 Respondents.

State of New York
Department of Environmental Conservation
_____________/s/_____________
GARY L. SPIELMANN
ACTING EXECUTIVE DEPUTY COMMISSIONER

Dated: Albany, New York
March 6, 1995

TO: Angelo Pedone Jr.
84 Ashdown Road
Schenectady, NY 12019

Angelo Pedone Jr.
Waste Systems of New York
2117 Lenox Road
Schenectady, NY 12308

Waste Systems of New York
2117 Lenox Road
Schenectady, NY 12308

Ronald Ruggiero
13 Woodvue Road
Windham, New Hampshire 03087

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Alleged Violations of Articles 27 and 71 of
the Environmental Conservation Law of the State of New York by:

ANGELO PEDONE Jr.,
WASTE SYSTEMS OF NEW YORK, INC.,
and
RONALD RUGGIERO

Respondents.

DEFAULT SUMMARY REPORT

Case No. R4-1671-94-05

Proceedings

The Region 4 Staff of the New York State Department of Environmental Conservation ("Staff") served a Motion for Order Without Hearing together with supporting affidavits and submitted a copy of all the papers, without affidavits of service, to the Office of Hearings on November 4, 1994. I noted that the papers did not provide notice to Respondents that failure to respond might result in a default judgment being taken against them [6 NYCRR 622.12 (b)]. Rather than dismiss the case, I retained jurisdiction and, with notice to Respondents, directed allowed Staff an opportunity to correct the procedural errors.

On December 15, 1994, I received a letter from Assistant Regional Attorney Ann Lapinski attaching a letter from Marylou Pedone acknowledging receipt of the Motion, and disavowing any ties to Angelo Pedone, Jr. or any activity by Waste Systems of New York, Inc. at the 131 Edison Avenue site. The letter refers further inquiries to Attorney Peter McHugh.

Staff then served a Motion for Order without Hearing, together with supporting affidavits pursuant to 6 NYCRR Part 622.12 by personal service upon Respondent Angelo Pedone, Jr. on December 20, 1994. Staff served Respondent Waste Systems of New York, Inc. by delivering a copy of the Motion and supporting affidavits to the law firm of Englert, Stillman, Coffey and McHugh, attorneys for Waste Systems of New York, Inc., at 224 State Street, Schenectady, New York on December 20, 1994. Service was made upon Respondent Ronald Ruggiero by certified mail, delivered to him on December 28, 1994. The Motion states that failure to answer within 20 days of receipt of the Motion constitutes a default and may result in a default judgment being issues against Respondents pursuant to 6 NYCRR 622.12(b).

Staff has submitted an affirmation of Ann Lapinski, Assistant Regional Attorney for Region 4, dated November 1, 1994; an affidavit of Richard Forgea, Environmental Engineer 2 with Region 4, dated October 25, 1994; an affidavit of Lee C. Kiernan, Land and Claims Adjuster III for Region 4, dated October 25, 1994; an affidavit of David Wayman, Supervising Environmental Conservation Officer for Region 4, dated October 26, 1994; a separate volume containing the attachments to the foregoing affidavits and affirmations; and affidavits of service and green certified mail return receipt card. The Motion, affidavits and affirmation were received in the Office of Hearings on December 15, 1994. The affidavits of service on Waste Systems of New York and Angelo Pedone, Jr., were received on December 22, 1994 and February 22, 1995 respectively. The green certified mail response card, indicating Respondent Ruggiero received the Motion on December 28, 1994, was received in the Office of Hearings on January 19, 1995. These documents constitute the record of this proceeding.

None of Respondents has responded to the Motion; their time to do so under Section 622.12(c) has expired. The record closed on February 22, 1995, after all Respondents' time to answer had expired and upon receipt of the complete file by the Office of Hearings.

By letter dated February 17, 1995, Staff advised this Office that it has withdrawn its action against Waste Systems of New York, Inc. Further, by letter dated February 22, 1995, Staff advised this Office that it has settled its action against Respondent Ronald Ruggiero. Attached to this Report is a copy of the Stipulation of settlement between Respondent Ronald Ruggiero and Department resolving the issues between them. Consequently, the only remaining respondent is Angelo Pedone, Jr.

Motion for a Default Judgment

Staff moved for a Default Judgment under 6 NYCRR Part 622.15 by service of a Notice of Motion, Motion for Default Judgment and Affirmation of Assistant Regional Attorney Ann Lapinski dated February 8, 1995, which were received by this Office on February 9, 1995.

Findings and Conclusion

Pursuant to 6 NYCRR 622.12, the affidavits and exhibits submitted by the Department Staff in support of its Motion for an Order Without Hearing provide proof of proper service upon and notice to Respondents.

Pursuant to 6 NYCRR 622.12(b) and 622.15, a Motion for a Default Judgment may be brought if a respondent fails to appear or respond. The Motion must include proof of service upon the respondent of the document which commenced the proceeding, proof of respondent's failure to appear or respond within the allotted time, and a proposed answer. Consideration of a Motion for Default Judgment by the Office of Hearings is limited to the circumstances of the default itself. The default must be granted if, upon the papers submitted, it is established that a Respondent was properly served and failed to appear or answer. The papers submitted in this proceeding meet the foregoing requirements and establish that each of Respondents defaulted.

Recommendation

The Commissioner should grant the default judgment against Respondent Angelo Pedone, Jr.

_____________/s/_____________
Kevin J. Casutto
Administrative Law Judge

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