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Tirado, Salvatore - Order, June 4, 2003

Order, June 4, 2003

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Article 17 of the Environmental Conservation Law
of the State of New York and Parts 612 and 613 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

-- by --

Salvatore Tirado,
Respondent.

ORDER

Case No. 3-600700

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 a Notice of Hearing and Complaint upon the Respondent, Salvatore Tirado, by certified mail.
  2. The Notice of Hearing 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 affidavit of DEC Staff member Lisa Cerniglia 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 the 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 on March 13, 2002.
  4. In the Complaint dated March 8, 2002, DEC Staff alleged four causes of action against Salvatore Tirado for violations relating to a petroleum bulk storage facility he owns located at 1275 Route 32, Plattekill, New York. The four causes of action allege that the Respondent: 1) failed to register his facility as required by §612.2 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"); 2) failed to conduct tightness testing for the tanks and connecting piping systems at the facility and submit the results of that testing to DEC Staff, as required by 6 NYCRR 613.5; 3) failed to maintain inventory records for underground storage tanks, as required by 6 NYCRR 613.4; and 4) failed to permanently mark all fill ports to identify the product inside the facility's tanks, as required by 6 NYCRR 613.3.
  5. Staff documents by affirmation of Scott A. Herron, Esq. that:
    1. Respondent failed to serve an answer on the Department within 20 days of Respondent's receipt of the notice of hearing and complaint or in an otherwise timely manner;
    2. Respondent failed to attend the pre-hearing conference;
    3. the penalty imposed is consistent with that sought in the complaint and not inconsistent with applicable law; and
    4. failure to answer a complaint and appear at the scheduled pre-hearing conference are both 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:

  1. Pursuant to 6 NYCRR 622.15, Respondent is found to have violated 6 NYCRR 612.2, 613.5, 613.4 and 613.3 and ECL Article 17 and is found to have defaulted in answering the Notice of Hearing and Complaint and to have waived his right to a hearing in this proceeding.
  2. Respondent, Salvatore Tirado, shall be liable for a penalty of thirty thousand dollars ($30,000), ten thousand dollars ($10,000) of which shall be suspended provided the Respondent completes all three tasks described below:
    1. Within thirty (30) days of the date of this Order, Respondent shall submit to DEC Staff a completed application to register his petroleum bulk storage facility, as well as a certified check or money order in the amount of the registration fee(s) required by 6 NYCRR 612.3; and
    2. Within thirty (30) days of the date of this Order, Respondent shall permanently close all underground petroleum tanks and connecting piping systems in accordance with 6 NYCRR 613.9(b), (c), (d), and (e); and
    3. Within sixty (60) days of the date of this Order, Respondent shall submit a closure report documenting proper closure of the facility's underground storage tanks in accordance with 6 NYCRR 613.9(b), (c), (d), and (e).

    The remaining amount of the penalty, Twenty Thousand dollars ($20,000.00) shall be paid within 30 days of service of this Order to the New York State Department of Environmental Conservation. Payment of this penalty shall be by cashier's check, certified check or Money Order drawn to the order of "NYSDEC" and delivered to the Department's Office of General Counsel, NYS DEC Headquarters, 625 Broadway, New York, 12233-5500, Attention: Scott A. Herron, Esq. Should Respondent fail to provide any of the three (3) items listed above, the suspended portion of the penalty shall become immediately due and payable.

  3. All communications from Respondent to the Department concerning this order shall be made to: Scott A. Herron, Esq., NYS DEC Headquarters, 625 Broadway, New York, 12233-5500.
  4. 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: Erin M. Crotty
Commissioner

Dated: Albany, New York
June 4, 2003

To: Richard Sherman, Esq.
NYS DEC
625 Broadway, 14th Floor
Albany, N.Y. 12233-5500

Salvatore Tirado
316 East 104th Street
Apartment #1
New York, NY 10029

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Article 17 of the Environmental Conservation Law
of the State of New York and Parts 612 and 613 of Title 6 of the
Official Compilation of Codes, Rules and Regulations of the State of New York

-- by --
Salvatore Tirado,

Respondent.

SUMMARY
REPORT

Case No. 3-600700

PROCEEDINGS

By a Notice of Hearing and Complaint dated March 8, 2002, Staff of the Department of Environmental Conservation ("DEC Staff") alleged four causes of action against Salvatore Tirado ("Respondent") for violations relating to a petroleum bulk storage facility he owns located at 1275 Route 32, Plattekill, New York.

The four causes of action allege that the Respondent: 1) failed to register his facility as required by §612.2 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"); 2) failed to conduct tightness testing for the tanks and connecting piping systems at the facility and submit the results of that testing to DEC Staff, as required by 6 NYCRR §613.5; 3) failed to maintain inventory records for underground storage tanks, as required by 6 NYCRR §613.4; and 4) failed to permanently mark all fill ports to identify the product inside the facility's tanks, as required by 6 NYCRR §613.3.

By motion dated April 17, 2003, DEC Staff sought a judgment by default against the Respondent concerning the alleged violations. In support of its motion, DEC Staff submitted an affirmation of DEC Staff Attorney Scott A. Herron, Esq., a proposed Order, and an affidavit of service of the Notice of Hearing and Complaint on the Respondents, by DEC Staff member Lisa M. Cerniglia. The Notice of Hearing and Complaint were received by the Respondent at his home on March 13, 2002 and signed for by the Respondent (U.S.P.S. Article Number 7776 8409).

To date, the Respondent has failed to serve an Answer or otherwise move, although the time to do so expired on or about April 2, 2002.

The Notice of Motion for Default Judgment and supporting papers were mailed to the Respondent on or about April 17, 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 March 13, 2002, DEC Staff served a Notice of Hearing and Complaint on Respondent, Salvatore Tirado. The time to Answer or otherwise move expired on or about April 2, 2002. No Answer has been served to date.
  2. A pre-hearing conference was scheduled for April 10, 2002 at 11:00 a.m. The Respondent failed to appear.
  3. Staff served the motion for default judgment and supporting papers on Respondent on or about April 17, 2003. Respondent has not opposed said motion.
  4. The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR section 622.15(b).

RECOMMENDATION

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: Scott A. Herron, Esq.
NYS DEC
625 Broadway, 14th Floor
Albany, N.Y. 12233-5500

Salvatore Tirado
316 East 104th Street
Apartment #1
New York, NY 10029

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