ZIK Realty Corp., - Order, July 16, 2010
Order, July 16, 2010
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 (ECL) and Section 612.2 of Title 6 of the Official
Compilation of Codes, Rules and Regulations of the
State of New York (6 NYCRR),
-by-
ZIK REALTY CORP.,
Respondent.
ORDER
DEC Case No.: PBS 2-242772
___________________________________________________
On June 16, 2010, an adjudicatory hearing was convened before Richard R. Wissler, Administrative Law Judge (ALJ) of the Office of Hearings and Mediation Services of the New York State Department of Environmental Conservation (Department) . The hearing addressed the allegations of Department staff that respondent, ZIK Realty Corp., violated 6 NYCRR 612.2 by failing to renew the registration for its petroleum bulk storage (PBS) facility located at 404 8th Avenue, New York, New York 10001 (facility). At the hearing, Department staff was represented by Scott W. Caruso, Esq., Section Chief, Spill and Bulk Storage Section of the Department's Office of General Counsel, Albany, New York. No one appeared on behalf of respondent.
By memorandum dated June 29, 2010, Alexander B. Grannis, Commissioner of the Department, delegated decision making authority in this matter to the undersigned, Louis A. Alexander, Assistant Commissioner for Hearings and Mediation Services.
ALJ Richard Wissler prepared the attached hearing report, which I adopt as my decision in this matter. As set forth in the ALJ's hearing report, respondent ZIK Realty Corp. failed to file an answer to the complaint served by Department staff in this matter, failed to appear at a pre-hearing conference scheduled for May 26, 2010, as directed in the cover letter served with the notice of hearing and complaint, and, as noted, failed to appear for the adjudicatory hearing scheduled in the matter on June 16, 2010, as directed in the notice of hearing (see Hearing Report, at 3 [Finding of Fact No. 9]).
As a consequence of respondent's failure to answer or appear in this matter, the ALJ recommended that Department staff's motion for default be granted (see Hearing Report, at 4), and I concur that staff is entitled to a judgment on default pursuant to 6 NYCRR 622.15. Furthermore, at the hearing Department staff presented a prima facie case on the merits, and proved its case by a preponderance of the evidence (see Hearing Report, at 3). Accordingly, staff is entitled to a judgment based on record evidence.
NOW, THEREFORE, having considered this matter and being duly advised, it is ORDERED that:
- Department staff's motion for a default judgment pursuant to 6 NYCRR 622.15 is granted. By failing to answer or appear in this proceeding, respondent ZIK Realty Corp. waived its right to be heard at the hearing.
- Moreover, based upon the proof adduced at the adjudicatory hearing, respondent ZIK Realty Corp. is adjudged to have violated 6 NYCRR 612.2 for failing to renew the petroleum bulk storage registration for the petroleum bulk storage facility that it owns and which is located at 404 8th Avenue, New York, New York 10001.
- Within fifteen (15) days of the service of this order upon respondent, respondent shall submit to the Department a petroleum bulk storage facility renewal application, plus applicable registration fees.
- Within fifteen (15) days of the service of this order upon respondent, respondent ZIK Realty Corp. shall pay a civil penalty in the amount of ten thousand dollars ($10,000.00) by certified check, cashier's check or money order made payable to the New York State Department of Environmental Conservation.
- The facility registration renewal application, applicable registration fees, and the penalty payment shall be sent to the following address:
Office of General Counsel
New York State Department of Environmental Conservation
625 Broadway, 14th Floor
Albany, New York 12233-1500
Attn: Brooke Turallo - Any questions or other correspondence regarding this order shall also be addressed to Brooke Turallo at the address referenced in paragraph V of this order.
- The provisions, terms and conditions of this order shall bind respondent ZIK Realty Corp., its agents, successors and assigns, in any and all capacities.
For the New York State Department
of Environmental Conservation
/s/
By: ______________________________
Louis A. Alexander
Assistant Commissioner
Dated: Albany, New York
July 16, 2010
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
----------------------------------------------------------------X
In the Matter of the Alleged Violations of Article 17 of the
Environmental Conservation Law of the State of New York
(ECL) and Section 612.2 of Title 6 of the Official
Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR),
-by-
ZIK REALTY CORP.,
Respondent.
HEARING REPORT
DEC CASE NO:PBS 2-242772
------------------------------------------------------------X
Procedural History
Respondent, ZIK Realty Corp., was served by certified mail with a notice of hearing and complaint, dated April 13, 2010, alleging a violation of ECL 17-1009 and its implementing regulation, 6 NYCRR 612.2, for failure to renew the registration of its petroleum bulk storage (PBS) facility located at 404 8th Avenue, New York, New York 10001. The complaint seeks an order of the Commissioner (1) finding respondent in violation of ECL 17-1009 and 6 NYCRR 612.2; (2) assessing a civil penalty in the amount of ten thousand dollars ($10,000); (3) directing respondent to register its PBS facility within fifteen (15) days of the service of the Commissioner's Order; and (4) granting such other and further relief as the Commissioner may deem just and proper.
As shown by United States Postal Service records, respondent received the notice of hearing and complaint on April 16, 2010. Moreover, inasmuch as respondent is an active business corporation in the State of New York, service of the notice of hearing and complaint was also made on the New York Secretary of State on April 14, 2010. Respondent failed to file an answer to the complaint; failed to appear at a pre-hearing conference scheduled for May 26, 2010, as directed in the cover letter served with the notice of hearing and complaint; and failed to appear for the adjudicatory hearing scheduled in the matter on June 16, 2010, as directed in the notice of hearing.
On June 16, 2010, an adjudicatory hearing was convened before the undersigned Administrative Law Judge (ALJ) of the Department of Environmental Conservation's (Department) Office of Hearings and Mediation Services (OHMS) at the Department's Region 2 offices, 1 Hunter's Point Plaza, 47-40 21st Street, Long Island City, New York 11101-5401. Department staff was represented by Scott W. Caruso, Esq., Section Chief, Spill and Bulk Storage Section, Office of General Counsel, New York State Department of Environmental Conservation, 625 Broadway, Albany, New York 12233-1500. No one appeared on behalf of respondent.
Department staff called one witness, Nicholas Lombardo, Agency Program Aide with the PBS Unit of the Department's Region 2 office. In all, six (6) exhibits were received in evidence.
Applicable Regulatory Provision
Section 612.2. Registration of Facilities
(a) Existing facilities.
(1) Within one year of the effective date of these regulations, the owner of any petroleum storage facility having a capacity of over 1,100 gallons must register the facility with the department. This shall include any out-of-service facility which has not been permanently closed.
(2) Registration must be renewed every five years from the date of the last valid registration until the department receives written notice that the facility has been permanently closed or that ownership of the facility has been transferred.
(b) Transfer of ownership. If ownership of the facility changes, the new owner must reregister the facility with the department within 30 days of ownership transfer.
(c) New facilities. The owner must register any new facility with the department before it is placed in service.
(d) Substantially modified facilities. Within 30 days prior to substantially modifying a facility, the owner must notify the department of such modification on forms supplied by the department.
Findings of Fact
- Respondent, ZIK Realty Corp., is the owner of a petroleum storage facility having a capacity of over 1,100 gallons located at 404 8th Avenue, New York, New York 10001. In particular, petroleum storage tank number 001 at the facility has a capacity of 2,000 gallons and is located underground.
- Pursuant to a registration application filed by respondent, on July 14, 1998, the Department issued respondent Petroleum Bulk Storage (PBS) Certificate number 2-242772, registering respondent's PBS facility. This registration expired on September 24, 2003.
- Nicholas Lombardo is an employee of the Department whose duties include the care, custody, and maintenance of the petroleum storage facility records filed with the Department, which records include petroleum facility registrations filed pursuant to 6 NYCRR 612.2.
- On June 16, 2010, Nicholas Lombardo searched the petroleum storage facility records of the Department for any facility registration or renewal registration filed by respondent for the facility.
- As a result of his search, Nicholas Lombardo determined that respondent had not renewed the facility's registration after September 24, 2003, the date on which PBS Certificate 2-242772 expired.
- Respondent was served by certified mail with a notice of hearing and complaint, dated April 13, 2010, alleging a violation of ECL 17-1009 and its implementing regulation, 6 NYCRR 612.2, for failure to renew the registration of its petroleum bulk storage (PBS) facility located at 404 8th Avenue, New York, New York 10001.
- As shown by United States Postal Service records, respondent received the notice of hearing and complaint on April 16, 2010.
- Moreover, inasmuch as respondent is an active business corporation in the State of New York, service of the notice of hearing and complaint was also made on Secretary of State on April 14, 2010.
- Respondent failed to file an answer to the complaint; failed to appear at a pre-hearing conference scheduled for May 26, 2010, as directed in the cover letter served with the notice of hearing and complaint; and failed to appear for the adjudicatory hearing scheduled in the matter on June 16, 2010, as directed in the notice of hearing.
Discussion
Department staff's proof presents a prima facie case demonstrating that respondent failed to renew its PBS registration on or after the expiration of PBS Certificate 2-252772 on September 24, 2003, in violation of 6 NYCRR 612.2.
The record shows that respondent failed to file an answer to the complaint; failed to appear at a pre-hearing conference scheduled for May 26, 2010, as directed in the cover letter served with the notice of hearing and complaint; and failed to appear for the adjudicatory hearing scheduled in the matter on June 16, 2010, as directed in the notice of hearing. The Department is entitled to a default judgment in this matter pursuant to the provisions of 6 NYCRR 622.15.
Moreover, the proof adduced at the hearing, conducted in respondent's absence, demonstrates by a preponderance of the evidence that respondent failed to renew its PBS facility registration in violation of 6 NYCRR 612.2. The Department is entitled to judgment upon the facts proven.
Department staff's proposed order and the $10,000 civil penalty it seeks are consistent with the Department's penalty policy as well as applicable provisions of ECL article 71.
Recommendation
Based upon the foregoing, I recommend that the Commissioner issue an order:
- Granting Department staff's motion for default, finding respondent in default pursuant to the provisions of 6 NYCRR 622.15;
- Finding respondent in violation of 6 NYCRR 612.2 for failure to renew the registration for a petroleum storage facility it owns located at 404 8th Avenue, New York, New York 10001, based upon the proof adduced at the adjudicatory hearing;
- Directing respondent to submit a registration renewal application to the Department for the above facility;
- Directing respondent to pay a civil penalty in the amount of ten thousand dollars ($10,000.00); and
- Directing such other and further relief as he may deem just and proper.
/s/
__________________________
Richard R. Wissler
Administrative Law Judge
Dated: Albany, New York
June 21, 2010
| Exhibit No. | Description | ID'd? | Rec'd? | Offered By | Notes |
|---|---|---|---|---|---|
| OHMS 1 | Pleadings, including: cover letter, notice of hearing, complaint, and statement of readiness (all dated April 13, 2010); and affidavit in support of Brooke Turallo, sworn to April 13, 2010 with attached exhibit: Petroleum Bulk Storage Application. | x | x | N/A | |
| 1 | Petroleum Bulk Storage Application | x | x | Department Staff | |
| 2 | Facility Information Report (printed 4/14/10) | x | x | Department Staff | |
| 3 | Petroleum Bulk Storage Certificate (issued 7/14/98) | x | x | Department Staff | |
| 4 | Deed (including 2 pages of printout of search information from NYS Department of Finance, Office of the City Register, and two page deed) | x | x | Department Staff | |
| 5 | Affidavit of Service, sworn to June 16, 2010, including New York State Department of State printout and U.S. Postal Service printouts | x | x | Department Staff |
