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R & K Oil, Inc. - Order, January 17, 2001

Order, January 17, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
the Alleged Violation of Article 17 of the Environmental Conservation Law (ECL) of the State of New York and Title 6 of the Official Compilation of Codes, Rules and Regulations (6 NYCRR) of the State of New York Part 613

- by -

R&K Oil, Inc.
125-24 Metropolitan Avenue
Kew Gardens, New York 11415

RESPONDENT

ORDER DEC Case No. 2-600646

WHEREAS:

  1. Pursuant to §622.3(a)(1), the New York State Department of Environmental Conservation initiated the captioned enforcement action by serving a Notice of Hearing and a Complaint both dated December 10, 1999 upon the Respondent, R&K Oil, Inc., by certified mail, return receipt requested. The affidavit of mail service by Joan L. Betts, and the signed domestic return receipt demonstrate that service of the December 10, 1999 Notice of Hearing and the Complaint was in a manner consistent with the requirements outlined in §622.3(a)(3).
  2. Pursuant to §622.4, a respondent, or its representative, must serve the Department with an answer within 20 days of receipt of the complaint. As authorized by §622.8, the December 10, 1999 Notice of Hearing scheduled a pre-hearing conference for January 27, 2000 at 9:30 a.m. at the Department's Region 2 Offices. In addition, the Notice concerning the captioned matter included a reference to §622.15(a) and a statement that a default and waiver of the Respondent's right to a hearing would result if the Respondent failed to answer the Complaint in a timely manner, or if the Respondent did not attend the scheduled pre-hearing conference.
  3. Pursuant to §622.15, the Department moved for a default judgment on December 26, 2000. The Department's default motion included an affirmation of Benjamin A. Conlon, Esq. dated December 26, 2000. Attorney Conlon's affirmation is unrefuted and demonstrates that:
    1. the Respondent failed to serve an answer on the Department in a timely manner, as required by §622.4, and
    2. the Respondent failed to appear at the January 27, 2000 pre-hearing conference.
  4. Failure either to answer a complaint, or to appear at a pre-hearing conference are both grounds for a default judgment pursuant to §622.15(a).
  5. The Respondent owns a petroleum bulk storage facility (PSB No. 2-600646) at 125-24 Metropolitan Avenue, Kew Gardens (Queens County), NY. Pursuant to the requirements outlined in ECL §17-1005 and §613.5, the Respondent was required to test Tank No. 4 at its facility for tightness, and to report the test results to the Department in December 1987 and every five years thereafter. The Respondent did not provide the Department with the necessary documentation to show that its petroleum bulk storage facility is in compliance with the ECL and implementing regulations. Therefore, the Respondent, R&K Oil, Inc., violated ECL §17-1005 and §613.5. This violation has continued since December 1987.
  6. In the December 10, 1999 Complaint, the Department requested a civil penalty of $10,000 and an order directing the Respondent to comply with the requirements outlined in §613.5. The Department requested the same relief in the default motion. Based on Attorney Conlon's affirmation, the penalty initially sought in the Complaint, and requested in the motion, is appropriate particularly since the violation has continued since December 1987.
  7. 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 Daniel P. O'Connell. Attached hereto is a copy of the ALJ's Summary Report, which I adopt.

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

  1. Pursuant to §622.15, the Respondent, R&K Oil, Inc. is found to be in default, and thereby waived its right to a hearing concerning this matter.
  2. For failing to comply with the tank testing requirements outlined in the ECL and Part 613, the Respondent, R&K Oil, Inc., shall pay a civil penalty of Ten Thousand ($10,00.00) dollars. The Respondent shall pay the full amount of the civil penalty 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.
  3. Within thirty (30) days of service of this Order, the Respondent shall either:
    1. conduct a tightness test on Tank No. 4 and the associated connecting system at its facility located at 125-24 Metropolitan Avenue in accordance with 6 NYCRR 613.5, or
    2. permanently close Tank No. 4 and the associated connecting system in accordance with 6 NYCRR 613.9(b), (c), (d), and (e).
  4. The Respondent shall notify the Department five (5) business days in advance of conducting a tank tightness test.
  5. The Respondent shall submit a report of the test results to the Department within fifteen (15) days of the completion of the tightness test. If the results of the test reveal that the tank is not tight, that portion of the Respondent's facility which failed the test must be promptly repaired, replaced, or closed in accordance with §613.5(a)(5). Additionally, if the test results show that the tank is leaking, then the Respondent shall report the leak to the Department within two (2) hours of the leak's discovery by calling the Department's Spills Telephone Hotline at (800) 457-7362, or for out-of-state callers, (518) 457-7362.
  6. The Respondent shall cease and desist from any and all future violations of the ECL and implementing regulations.
  7. All communications from the Respondent to the Department concerning this order shall be made to the Department's Region 2 Director, One Hunters Point Plaza, 47-40 21st Street, Long Island City, New York 11101-5407.
  8. The provisions, terms and conditions of this order shall bind the Respondent, its 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,
Albany, New York

Dated: January 17, 2001

To: R&K Oil, Inc.
125-24 Metropolitan Avenue
Kew Gardens, NY 11415

Benjamin A. Conlon, Esq.
Associate Attorney
NYSDEC - Division of Environmental Enforcement
50 Wolf Road
Albany, New York 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 (ECL) of the State of New York and Title 6 of the Official Compilation of Codes, Rules and Regulations (6 NYCRR) of the State of New York Part 613

- by -

R&K Oil, Inc.
125-24 Metropolitan Avenue
Kew Gardens, New York 11415

RESPONDENT

Summary Report:
Motion for Default Judgment

DEC Case No. 2-600646

January 9, 2001

PROCEEDINGS

In a Complaint dated December 10, 1999 (the Complaint), the Department of Environmental Conservation (the Department) asserted that R&K Oil, Inc. (the Respondent) owns a petroleum bulk storage facility at 125-24 Metropolitan Avenue, Kew Gardens (Queens County), NY. The Department alleged that the Respondent violated ECL §17-1005, and its implementing regulation, Part 613, when it failed to test Tank No. 4 for tightness, and then failed to submit the results of the tightness test to the Department by December 1987. The asserted capacity of Tank No. 4 is 4,000 gallons. In the Complaint, the Department asked the Commissioner to assess a civil penalty of $10,000 pursuant to ECL §71-1929, and to order the Respondent either to conduct the required tightness test, or to close the tank permanently pursuant to the criteria outlined in §§613.9(b, c, d and e).

With the Complaint, the Department served a Notice of Hearing dated December 10, 1999 (the Notice). The Notice stated that an Answer from the Respondent, or its representative, was due within 20 days from receipt of the Notice and the Complaint [§622.4]. The Notice also scheduled a pre-hearing conference for 9:30 a.m. on January 27, 2000 at the Department's Region 2 Offices in Long Island City [§622.8]. The Notice stated further that a default and waiver of the Respondent's right to a hearing would result if the Respondent did not file a timely answer or did not appear at the pre-hearing conference [§622.15(a)].

A year after the Department commenced the captioned enforcement action, the Department moved for a default judgment against the Respondent by Notice of Motion dated December 26, 2000. Attached to the Department's default motion were Exhibits A through F. According to the affirmation of Benjamin Conlon, Esq. [Exhibit A], the Respondent did not file a timely Answer to the December 10, 1999 Complaint and did not appear at the January 27, 2000 pre-hearing conference. The remaining exhibits attached to the Department's motion were offered to show: (1) proof of service of the Complaint and Notice of Hearing upon the Respondent [Exhibits C, and D], (2) proof that, as of December 15, 2000, the Respondent had not reported the results of its tightness test on Tank No. 4 to the Department [Exhibit E], and (3) a proposed order [Exhibit F]. The proposed order would provide the relief initially sought by the Department in the December 10, 1999 Complaint.

A copy of the Department's Motion for Default Judgment was served upon the Respondent. On December 28, 2000, the captioned matter was assigned to Administrative Law Judge (ALJ) Daniel P. O'Connell. As of the date of this Summary Report, the Office of Hearings and Mediation Services had not received a reply from the Respondent to the Department's default motion.

DEFAULT PROCEDURES

Section 622.15(a) allows the Department to request a default judgment if a respondent does not file an answer to a complaint in a timely manner, or does not appear at a pre-hearing conference when one has been scheduled pursuant to §622.8. A motion for default judgment must contain:

  1. proof of service upon the respondent of a notice of hearing and complaint,
  2. proof of the respondent's failure to file a timely answer and to appear at the pre-hearing conference, and
  3. a proposed order [§622.15(b)].

When considering a motion for default judgment, the scope of the ALJ's review is limited to whether the Department has meet the requirements outlined in §622.15(b), and to "a description of the circumstances of the default, and the proposed order to the commissioner" [§622.15(c)]. Therefore, the following Findings are based upon the papers submitted, as identified above, and are limited as prescribed by §662.15(c).

FINDINGS

  1. The Department served copies of the Notice of Hearing and the Complaint, both dated December 10, 1999, upon R&K Oil, Inc. by certified mail, return receipt requested [Exhibit C(1)].
  2. The domestic return receipt attached to the envelop containing the Department's Notice of Hearing and the Complaint was signed on or about December 16, 1999, and the US Postal Service returned the signed receipt to the Department [Exhibit D].
  3. Referring to §622.4, the Department's December 10, 1999 Notice of Hearing stated that an Answer from the Respondent, or its representative, was due within 20 days from receipt of the Notice and the Complaint, which would have been some time in mid-January 2000. The Notice also scheduled a pre-hearing conference for 9:30 a.m. on January 27, 2000 at the Department's Region 2 Offices in Long Island City, NY. The pre-hearing conference is authorized by §622.8. With reference to §622.15(a), the Notice stated further that a default and waiver of the Respondent's right to a hearing would result if the Respondent did not file a timely answer or did not appear at the scheduled pre-hearing conference [Exhibit B].
  4. The Respondent did not file an Answer to the Department's December 10, 1999 Complaint by mid-January 2000. To date, no Answer from the Respondent has been received [Exhibit A].
  5. In addition, the Respondent did not appear at the Department's Region 2 Offices for the January 27, 2000 pre-hearing conference [Exhibit A].
  6. With the motion for default judgment, the Department included: (a) proof of service of the December 10, 1999 Notice of Hearing and the Complaint, (b) proof of the Respondent's failure to file a timely answer and its failure to appear at the January 27, 2000 pre-hearing conference, and (c) a proposed order.
  7. As of December 15, 2000, the Department had not received any results from the Respondent concerning the tightness of Tank No. 4 at the Respondent's petroleum bulk storage facility located at 125-24 Metropolitan Avenue, Kew Gardens (Queens County), New York.

CONCLUSIONS and RECOMMENDATIONS

The Department may commence an administrative proceeding with service of a notice of hearing accompanied by a complaint [§622.3(a)(1)]. Service of the notice of hearing and complaint must be by personal service consistent with the Civil Practice Law and Rules, or by certified mail [§622.3(a)(3)]. Service is complete when the notice of hearing and complaint are received [§622.3(a)(3)]. Ms. Betts' Affidavit of Mail Service dated December 13, 1999 [Exhibit C] and the signed, domestic return receipt [Exhibit D] establish that the Department duly served the December 10, 1999 Notice of Hearing and the Complaint upon the Respondent by certified mail in a manner consistent with §622.3(a)(3).

Attorney Conlon's December 26, 2000 affirmation [Exhibit A] is unrefuted, and establishes that the Respondent did not file a timely Answer and did not appear at the January 27, 2000 pre-hearing conference. The December 10, 1999 Notice of Hearing informed the Respondent of these requirements, and further stated that not complying with either of these requirements would result in a default and a waiver of the Respondent's right to a hearing. Therefore, I conclude that the requirements for a default judgment, as outlined in 6 NYCRR Part 622.15(b), have been met.

Accordingly, the Commissioner should grant the motion for default judgment. In granting the motion the Commissioner should find that the Respondent owns a petroleum bulk storage facility, and that the Respondent did not conduct the required tightness testing on Tank No. 4, and report the test results to the Department by December 1987 and every five years thereafter. Based on these findings, the Commissioner should conclude that the Respondent violated ECL §17-1005 and §613.5, and that this violation has continued since December 1987.

_____________/s/_____________
Daniel P. O'Connell
Administrative Law Judge
Albany, New York

Dated: January 9, 2001

To: Benjamin A. Conlon, Esq.
Associate Attorney
NYS DEC - Division of Environmental Enforcement
50 Wolf Road
Albany, New York 12233-5550

R&K Oil, Inc.
125-24 Metropolitan Avenue
Kew Gardens, New York 11415

1 Exhibits A through F were attached to the Department's default motion.

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