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Sokolowski, Joseph - Order, February 3, 2000

Order, February 3, 2000

NEW YORK STATE : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

ORDER

Case No. R5-2333-99-04

JOSEPH SOKOLOWSKI,
d/b/a The Auto Center

Respondent

WHEREAS:

  1. Pursuant to the Notice of Hearing and Complaint dated July 16, 1999, the New York State Department of Environmental Conservation (DEC) Staff commenced an administrative enforcement proceeding against the Respondent.
  2. Respondent Joseph Sokolowski, was served with a Notice of Hearing and Complaint on September 15, 1999, all as further addressed in the attached ALJ Default Summary Report, hereby adopted as my decision.
  3. Service of process was accomplished in accordance with 6 NYCRR §622.3 and CPLR §2103.
  4. Respondent's time for serving an Answer to the Complaint expired on October 5, 1999.
  5. DEC Staff made a Motion for Default Judgment dated January 7, 2000 outlining this failure.
  6. According to §622.15 of 6 NYCRR, Respondent is found to be in default and having waived its right to a hearing in this enforcement proceeding. Therefore, Department Staff's allegations against Respondent in its Complaint are deemed to have been admitted by Respondent.
  7. Respondent violated Environmental Conservation Law §17-1009 and 6 NYCRR §612.2 by failing to timely register its petroleum bulk storage tanks with the Department.
  8. Respondent violated 6 NYCRR §613.5(a) by failing to conduct tightness testing on tanks 001, 002, 003 and 004 and connecting piping systems.

THEREFORE, having considered this matter and being duly advised, it is ORDERED that:

  1. Respondent pay a penalty in the amount of (Seven Thousand Five Hundred ($7,500.00) dollars within thirty (30) days of service upon the Respondent of a conformed copy of this Order.
  2. Respondent, Joseph Sokolowski conduct tightness testing as set forth in 6 NYCRR 613.5(a), or permanently close tanks 001, 002, 003 and 004 and connecting piping systems, as set forth in 6 NYCRR 613.5(b), (c), (d), and (e) within thirty (30) days of receipt of this Order.
  3. Respondent, Joseph Sokolowski register said facility within thirty (30) days of this Order.
  4. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 5 Director, NYSDEC, Route 86, P.O. Box 296, Ray Brook, New York 12977.
  5. The provisions, terms and conditions of this Order shall bind the Respondent, his officers, directors, 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
February 3, 2000

TO: Joseph Sokolowski, d/b/a The Auto Center
Box 472, Hill Street
Brushton, New York 12916

Christopher A. Lacombe, Esq.
NYS Department of Environmental
Conservation, Region 5
Route 86, P.O. Box 296
Ray Brook, New York 12977-0296

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of an Alleged Violation of
Article 17 of the Environmental Conservation Law
and Parts 612 and 613 of Title 6 of the Official
Compilation of Codes, Rules and Regulations of
the State of New York by

DEFAULT
SUMMARY
REPORT

JOSEPH SOKOLOWSKI
d/b/a THE AUTO CENTER

File No.R5-2333-99-04
Respondent

Summary

The present report concerns a motion for a default judgement which the Region 5 Staff of the Department of Environmental Conservation (the "Department Staff") served in the matter of Joseph Sokolowski, d/b/a The Auto Center (the "Respondent") 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"). The report recommends that the motion be granted.

Proceedings

On September 15, 1999, Environmental Conservation Officer Kevin W. Riggs served upon the Respondent a Notice of Hearing and Complaint. The Complaint alleged that the Respondent had violated 6 NYCRR Section 613.5(a)(1) and Environmental Conservation Law ("ECL") Section 17-1005 by failing to conduct tightness testing at a petroleum bulk storage facility owned or operated by the Respondent. The Complaint further alleged that the Respondent violated 6 NYCRR 612.2(b) by failing to re-register the facility with the Department within 30 days of transfer of ownership. The facility is located at 24 Park Street, Tupper Lake, New York, 12986.

The Notice of Hearing required the Respondent to serve upon the Department an Answer to the Complaint within 20 days of receipt of the Complaint. The Notice further stated that failure to timely answer would result in a default and a waiver of the Respondent's right to a hearing. The Notice stated that an Administrative Law Judge ("ALJ") would set a date for hearing upon the filing by the Department Staff of a Statement of Readiness for Adjudicatory Hearing. The Notice did not set a date for a pre-hearing conference.

As of January 7, 2000, the Department Staff had not received any Answer nor any other contact from the Respondent. The Respondent also has not contacted the Department's Office of Hearings and Mediation Services.

On November 3, 1999, the Department Staff moved for a default judgement based on the Respondent's failure to answer the Complaint. The Department Staff made a modified motion on January 7, 2000. The motions were sent to the Office of Hearings and Mediation Services of the Department of Environmental Conservation, with copies sent to the Respondent. As of January 18, 2000, the Office of Hearings and Mediation Services had not received any response from the Respondent concerning the motion for a default judgement, nor an Answer.

Discussion

The procedures for a default judgement are provided in 6 NYCRR Section 622.15. The regulation provides that a respondent's failure to file a timely answer constitutes a default and a waiver of the respondent's right to a hearing. In this event, the Department Staff may make a motion to the Administrative law Judge for a default judgement. Failure to appear at a hearing or at a scheduled pre-hearing conference also constitute defaults, although those circumstances are not under consideration in the present case.

6 NYCRR 622.15(b) requires that a motion for default judgement contain: (1) proof of service upon the respondent of the notice of hearing and complaint or other such 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 regulation further provides that upon a finding by the ALJ that the requirements of Subdivision 622.15(b) have been adequately met, the ALJ will submit a report, which will be limited to a description of the circumstances of the default, and the proposed order to the Commissioner.

In the present case, the Department Staff has submitted an affirmation by Christopher A. Lacombe, Regional Attorney for Region 5, and an affidavit of personal service by ECO Riggs which prove that the Notice of Hearing and Complaint were served upon the Respondent on September 15, 1999 and that the Respondent failed to provide any Answer. The Notice of Hearing informed the Respondent that failure to answer would constitute a default and would result in waiver of the right to be heard in the matter. The Notice of Hearing directed that the Respondent file an Answer with the Department within 20 days following receipt of the Complaint, which would have been October 5, 1999. The Respondent did not file an Answer by this date and, as of January 7, 2000, did not have any other contact with the Department.

The Department Staff submitted a proposed order with the motion for a default judgement.

Thus, the requirements of 6 NYCRR 622.15(b) have been met with respect to the motion for a default judgement in this matter. In accordance with 6 NYCRR 622.15(c), this summary report will be submitted to the Commissioner accompanied by a proposed order.

Recommendation

The Commissioner should grant the default judgement requested by the Department Staff in this matter.

/s/
Susan J. DuBois
Administrative Law Judge

Albany, New York

Attachment

TO: Joseph Sokolowski, d/b/a The Auto Center
Box 472, Hill Street
Brushton, New York 12916

Christopher A. Lacombe, Esq.
NYS Department of Environmental
Conservation, Region 5
Route 86, P.O. Box 296
Ray Brook, New York 12977-0296

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