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Van Fleet, Carl - Decision & Order, December 7, 1999

Decision & Order, December 7, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
of Violation of Parts 612 and 613 of Title 6
of the Official Compilation
of Codes, Rules and Regulations of the State of New York, by

CARL R. VAN VLEET, individually and
d/b/a Carl's Friendly Service,
Respondent.

DECISION
AND
ORDER

CASE NO.
R8-1171-99-01

WHEREAS:

  1. Pursuant to §622.15 of Title 6 of the New York Compilation of Codes, Rules and Regulations ("6 NYCRR") Staff of the Region 8 office of the New York State Department of Environmental Conservation (the "Staff") duly moved for default judgment against Carl R. Van Vleet, individually and d/b/a Carl's Friendly Service, on notice to Respondent.
  2. The notice of motion and supporting papers provided that on August 6, 1999 Staff served the Respondent by certified mail with a copy of a notice of hearing and complaint. The notice of hearing included a statement that, pursuant to 6 NYCRR §622.12(b), a failure to file a response within twenty (20) days after receipt of the notice constituted a default. Attached to Staff's papers is a copy of the return receipt card for the certified mail bearing a delivery date of August 10, 1999.
  3. Respondent has failed to answer, otherwise appear or respond in any fashion to the notice of hearing and complaint within the time designated to do so.
  4. Failure to answer a compliant is grounds for a default judgment pursuant to 6 NYCRR §622.15. Respondent has failed to respond to staff's motion for a default judgment.

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

  1. Pursuant to 6 NYCRR §622.15, Respondent is found to be in default and accordingly, staff's allegations in its complaint against Carl R. Van Vleet individually and d/b/a Carl's Friendly Service, are deemed to have been admitted by Respondent.
  2. The Respondent violated 6 NYCRR §§612.2 and 613.5 by failing to properly register his petroleum bulk storage facility and by failing to conduct required tightness testing on underground petroleum storage tanks at the facility.
  3. Within thirty (30) days of service of a copy of this order upon Respondent, Carl R. Van Vleet individually and d/b/a Carl's Friendly Service shall properly register the facility in accordance with the requirements of 6 NYCRR §612.2 and pay the registration fee established by 6 NYCRR §612.3.
  4. With respect to tanks 001,002,003 and 004 identified in staff's complaint, within thirty (30) days of service of a copy of this order upon Respondent, Carl R. Van Vleet individually and d/b/a Carl's Friendly Service shall:
    1. conduct tightness testing on each of the underground petroleum storage tanks and connecting piping systems, submit test results to the Department, and take the steps required to empty, replace, repair or close leaking systems all in the manner specified in 6 NYCRR 613.5(a)(5); or
    2. permanently close the underground petroleum storage tanks and connecting piping systems in accordance with 6 NYCRR Part 613.9(b), (c), (d) and (e).
  5. A civil penalty of THIRTY-FIVE THOUSAND DOLLARS ($35,000) is assessed against Carl R. Van Vleet individually and d/b/a Carl's Friendly Service. FIFTEEN THOUSAND DOLLARS ($15,000) is due immediately and shall be paid within thirty (30) days of the service of a copy of this Order upon Respondent. The balance of the penalty in the sum of TWENTY THOUSAND DOLLARS ($20,000) shall be suspended and shall not be payable unless Respondent fails to comply satisfactorily with the provisions of this Order in a timely fashion.
  6. All communication between Respondent and Department Staff concerning this Order shall be made to: Assistant Regional Attorney Leo J. Bracci, Department of Environmental Conservation, Region 8, 6274 East Avon-Lima Road, Avon, New York 14414.
  7. The provisions, terms and conditions of this Order shall bind Respondent, its agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of Respondent.

For the New York Department of
Environmental Conservation
/s/
By: John P. Cahill, Commissioner

Dated: Albany, New York
December 7, 1999

TO: Carl R. Van Vleet
9794 Lodi Center Road
Valois, NY 14841

Carl's Friendly Service
8583 Route 414
Lodi, NY

Carl R. Van Vleet
d/b/a Carl's Friendly Service
8583 Route 414
Lodi, NY

Leo Bracci, Esq.
Assistant Regional Attorney
NYSDEC - Region 8
6274 East Avon-Lima Road
Avon, NY 14414

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

Carl R. Van Vleet individually and
d/b/a Carl's Friendly Service
8583 Route 414
Town of Lodi, Seneca County

Respondent

Summary Report on
Motion for Default Judgment

Case No. R8-1171-99-01

PROCEEDINGS

Pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York, Section 622.15, the New York State Department of Environmental Conservation ("Department") Region 8 Staff ("Staff") has moved for a default judgment against Carl R. Van Vleet, individually and d/b/a Carl's Friendly Service, 8583 Route 414, Town of Lodi, Seneca County (the "Respondent").

Staff made its motion on or about October 20, 1999 by sending to Carl R. Van Vleet, individually and d/b/a Carl's Friendly Service, the Respondent, the following papers:

A Notice of Motion for Default Judgment dated October 20, 1999; a Motion for Default Judgment; an Affirmation in Support of Motion for Default Judgment; and an unsigned Order; and by filing, on or about October 20, 1999, said documents with the Department's Office of Hearings and Mediation Services.

Respondent's response to Staff's Motion was due on November 4, 1999 pursuant to 6 NYCRR §622.6, presuming Respondent is entitled to an additional 5 days when service is made by ordinary mail and excluding Saturdays, Sundays and the public holiday.

No response to the motion has been received from the Respondent as of the date of this Summary Report.

Default Procedures

Section 622.15, "Default procedures" provides in pertinent part:

"(b) The motion for a default judgment may be made orally on the record or in writing and 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.

"(c) Upon a finding by the ALJ that the requirements of subdivision (b) have been adequately met, the ALJ will submit a summary report, which will be limited to a description of the circumstances of the default, and the proposed order to the commissioner. ..."

The following Findings are based upon the papers submitted, as identified above.

FINDINGS

  1. On March 12, 1999, Staff sent a Notice of Hearing and Complaint to Mr. Carl R. Van Vleet, 9794 Lodi Center Road, Valois, NY 14841, the Respondent.
  2. An Affidavit of Service indicates that the Notice of Hearing and Complaint was placed in a secure wrapper envelope and the envelope was put in the Department's regional mail room regularly maintained by practice of the Department for pick up by the United States Government Postal Service. The envelope was sent to Mr. Carl R. Van Vleet, 9794 Lodi Center Road, Valois, NY 14841, alleged to be Respondent's business address as reflected in the Department's files via certified mail (PS Form 3800 attached) with a return receipt card (PS Form 3811 attached) indicating Article Number P697682780.
  3. The receipt for the aforesaid mailing was returned to Staff, indicating the mail was received August 10, 1999 and apparently signed by Carl Van Vleet.
  4. As of October 20, 1999 (the date of the motion papers), Carl R. Van Vleet had not responded to the Notice of Hearing and Complaint.
  5. The requirements for a default judgement have been adequately met as prescribed by 6 NYCRR §622.15(b).

CONCLUSION

The motion for a default judgement can be granted as proposed. This Summary Report and Staff's proposed Order (attached hereto) can be referred to the Commissioner for final determination.

November 24, 1999
Albany, New York

/s/
Francis W. Serbent
Administrative Law Judge

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