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Bradley Corporate Park - Ruling 3, February 13, 2002

Ruling 3, February 13, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Article 24 of the Environmental Conservation Law
and Part 663 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York

- by -

BRADLEY CORPORATE PARK and JOHN MAGEE and PATRICK MAGEE,
individually and as general partners of
BRADLEY CORPORATE PARK,

Respondents.

RULING ON MOTION

DEC File No.3-2000-0424-43

February 13, 2002

Summary

This ruling addresses a motion by DEC Staff to include an additional exhibit in the hearing record in the above-captioned case. DEC Staff asserts that it is proper to include this last exhibit, which revises a previously submitted exhibit that depicted the extent of unpermitted fill in freshwater wetland NA-4, because of the Respondents' failure to disclose information requested during discovery. This information was disclosed at the direction of the ALJ after the eighth day of the hearing. The Respondents allege that the proposed new exhibit does not rely exclusively on the newly disclosed information, but rather is based upon information known to DEC Staff before the hearing began. According to the Respondents, it would not be proper to include this proposed exhibit in the record because DEC Staff is seeking to enter evidence after the conclusion of hearing. The ALJ finds that it is necessary to reconvene the hearing to consider the introduction of the proposed exhibit and to allow cross examination of the exhibit's preparer.

Background

This action was commenced by DEC Staff by service of a Notice of Hearing and Complaint accompanied by a Motion for Expedited Fact Finding dated May 11, 2000. Following five days of hearings, on June 18, 2001, the Commissioner determined that the Respondents had filled a portion of Freshwater Wetland NA-4 and its adjacent area without a permit. The hearing then reconvened for three days to determine the appropriate remedial action and monetary penalty.

Discussion

The last day of the hearing was scheduled for September 6, 2001. On this day, the Respondents offered the testimony of Joseph Corless, a licensed surveyor and professional engineer, who testified that the amount of fill at the site of the violation was approximately 5,000 cubic yards. This testimony contradicted the testimony of the DEC Staff surveyor who had testified that the amount of fill was in excess of 15,000 cubic yards. Mr. Corless testified that the DEC Staff surveyor had made two errors: 1) the DEC Staff surveyor had included an area in his calculation which was neither in the freshwater wetland nor in the adjacent area; and 2) the DEC Staff surveyor had assumed the wrong elevation (above sea level) in his calculations.

The DEC Staff surveyor used an elevation from a map of the site of the violation prepared by a licensed landscape architect to determine the amount of unpermitted fill. He had done this after determining that an elevation marker placed on a nearby bridge by the United States Geodetic Service (USGS) had been destroyed when the bridge was removed. During Mr. Corless' testimony, he revealed that there was another elevation marker within a quarter of a mile of the site of the violation that had been placed by Rockland County. Mr. Corless used this marker in his calculation of the volume of fill.

When the existence of the Rockland County marker was revealed at hearing, DEC Staff objected, stating that they had requested the background documentation regarding the basis of Mr. Corless's conclusions during discovery and that this information was not provided. At the direction of the ALJ, the Respondents transmitted the background data to DEC Staff on September 28, 2001. Following review of the data, the DEC Staff surveyor concluded that the elevations used by Mr. Corless were correct and that DEC Staff's estimate of fill was wrong.

On October 12, 2001, the parties and the ALJ established a timetable for: 1) DEC Staff to make a motion to submit a new exhibit with a revised fill estimate; 2) the Respondents to answer the motion; and, 3) closing briefs in the matter. DEC Staff timely filed its motion on October 29, 2001 along with a revised exhibit, an affirmation of counsel and an affidavit from the DEC Staff surveyor. The revised exhibit estimated the amount of fill at approximately 8,000 cubic yards. In his affidavit, the DEC Staff surveyor stated that he had not known of the presence of the Rockland County elevation marker until Mr. Corless' testimony and that, using this marker, he had determined that his original estimate of fill was wrong because his original estimate of elevation had been 2.23 feet in error. Further, he stated that the calculation of fill in the revised exhibit results only from a change in the elevation and that no other input was changed.

The Respondents oppose DEC Staff's motion with regard to the revised estimate of fill. The Respondents contend that the revised fill estimate is based not only on the revised elevation but upon other factors, known to DEC Staff before Mr. Corless's testimony. The Respondents assert that DEC Staff is now improperly trying to enter new evidence into the record.

Ruling: DEC Staff is entitled to revise its estimate of fill based upon information that should have been disclosed. However, the Respondents are entitled to challenge the veracity of the information in the proposed exhibit and to make their case that the new estimate of fill is based upon information known to DEC Staff prior to Mr. Corless's testimony. Accordingly, an additional day of hearing shall be scheduled. The parties will be contacted shortly to arrange this last day of hearing.

_____________/s/_____________
By: P. Nicholas Garlick
Administrative Law Judge

Dated: Albany, New York
February 13, 2002

TO: Steven Goverman, Esq.
Burton I. Dorfman, Esq.

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