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Breezy Point Cooperative - Order, May 13, 1993

Order, May 13, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 25 of the New York State Environmental Conservation Law,
and 6 NYCRR Part 661

- by -

Breezy Point Cooperative

Respondent

ORDER

Case No. R2-0472-92-09

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated November 9, 1992, an enforcement hearing was held before Administrative Law Judge ("ALJ") Frank Montecalvo on January 5 and 6, 1993. The Department of Environmental Conservation (the "Department") appeared by Steven Goverman, Esq., Assistant Regional Attorney. The Respondent, Breezy Point Cooperative, appeared by Cunningham & Lee, Robert E. Lee, Esq., of counsel.
  2. Upon review of the ALJ's Hearing Report (copy attached) and the record of this proceeding, I concur with its Findings of Fact, Conclusions of Law, and Recommendations which establish that the Respondent violated ECL 25-0401 on or about September 25, 1992 by having failed to keep previously existing snow fences on the bay side of its project site in place as required by Special Condition No. 22 of its DEC Permit.
  3. As set forth in the Hearing Report, the Department's jurisdiction over tidal wetlands in Queens County based on the maps that were filed in the New York City Register's Office has already been confirmed by a court of competent jurisdiction (James A. Mills and Grace Ford v. NYSDEC and the People of New York State, Index No. 9197-92, Supreme Court, Queens County (1992)).
  4. I concur with the ALJ that any permission which the Department gave to temporarily remove the fences during construction does not constitute a waiver of Special Condition 22.
  5. The Respondent's argument regarding the inapplicability of the civil penalty provisions to the instant violation is also rejected. The permit issued to the Respondent and the conditions attached thereto were issued pursuant to authority in ECL Article 25. Once the permitted activity is undertaken any violation of those conditions is a violation of the provisions of Article 25 and is subject to the civil penalties in ECL 71-2503.
  6. I find that the ALJ properly permitted the amendment to the Department Staff's complaint and in doing so also made adequate provision to protect the due process rights of the Respondent.

In determining an appropriate penalty, I have taken into account the circumstances of this case as established in the hearing record and analyzed in the Hearing Report.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

  1. Respondent Breezy Point Cooperative is found to have violated ECL 25-0401 on or about September 25, 1992 by having failed to keep existing snow fences on the bay side in place as required by Special Condition No. 22 of its DEC Permit.
  2. For this violation, Respondent is assessed and shall pay a civil penalty of Ten Thousand Dollars ($10,000) within 60 days of receipt of this Order; and
  3. Respondent shall reinstall the snow fence, and remediate adversely affected areas, within a reasonable time, under the Department's supervision.
  4. All communications between Respondent and the Department concerning this Order shall be made to the Director, New York State Department of Environmental Conservation, Region 2 Headquarters, One Hunters Point Plaza, 47-40 21st Street, Long Island City, NY 11101.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: THOMAS C. JORLING, COMMISSIONER

Dated: May 13, 1993
Albany, New York

VIA CERTIFIED MAIL

W/RETURN RECEIPT

TO: Breezy Point Cooperative
202-30 Rockaway Point Blvd.
Rockaway, NY 11697

Cunningham & Lee
111 Fulton Street, New York, NY 10038
attn: Robert E. Lee, Esq.

Steven Goverman, Esq., Assistant Regional Attorney
NYSDEC Region 2
One Hunters Point Plaza
47-40 21st Street
Long Island City, NY 11101

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Office of Hearings
50 Wolf Road
Albany, New York 12233-1550

In the Matter of

the Alleged Violation of Article 25 of
the New York State Environmental Conservation Law and 6 NYCRR Part 661

by

Breezy Point Cooperative
202-30 Rockaway Point Blvd.
Rockaway, NY 11697

Respondent

Case No. R2-0472-92-09

HEARING REPORT

-by-

____________/s/_____________
Frank Montecalvo
Administrative Law Judge

PROCEEDINGS

Pursuant to a Notice of Hearing and Complaint (copy attached hereto as Appendix A) dated November 9, 1992, duly served November 10, 1992, the New York State Department of Environmental Conservation (the "Department," "NYSDEC" or "DEC") Region 2 Staff (the "Department Staff" or "Staff") initiated a civil administrative enforcement proceeding, conducted in accordance with the State Administrative Procedure Act ("SAPA") and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 622, against Breezy Point Cooperative, 202-30 Rockaway Point Blvd., Rockaway, NY 11697 (the "Respondent"), in the matter of the alleged violation of Article 25 of the New York State Environmental Conservation Law ("ECL") and 6 NYCRR Part 661.

Respondent filed an Answer to the Complaint, dated November 19, 1992.

In accordance with the Notice of Hearing, an adjudicatory hearing was convened before Administrative Law Judge ("ALJ") Frank Montecalvo on January 5, 1993 at the NYSDEC Region 2 Offices, One Hunters Point Plaza, 47-40 21st Street, Long Island City, NY 11101. Steven Goverman, Esq., Assistant Regional Attorney appeared on behalf of the Department Staff. Cunningham & Lee, Robert E. Lee, Esq., of counsel, appeared on behalf of Breezy Point Cooperative.

Testimony was taken on January 5, 1993 and continued on January 6, 1993, concluding on the latter date. Staff presented as its witnesses: Leslie Adler, Marine Resource Specialist with the DEC Bureau of Marine Habitat Protection; and James Gilmore, Regional Manager for the DEC Bureau of Marine Habitat Protection. Respondent called as its witnesses Aram Terchunian, principal of First Coastal Corporation; and Mr. Gilmore.

During the hearing, in response to what it perceived to be Respondent's argument that the Complaint was defective without it, Staff requested to be permitted to amend its complaint to make reference to ECL 25-0403 in addition to the reference to ECL 25-0401. Over Respondent's objection, the Complaint was deemed amended, however the ALJ permitted Respondent to reargue its objection in its final brief, and indicated that same would be reconsidered. In addition, Respondent was afforded opportunity for an adjournment to prepare for the amendment, however the Respondent declined an adjournment.

The record was held open pending receipt of the hearing transcript and closing briefs. The record closed on February 11, 1993 upon receipt of the closing briefs.

The Charge:

Staff charged that at its address in Rockaway, Queens County, New York, the Respondent failed to comply with Special Condition No. 22 of DEC Permit No. 2-6309-00024/00001-0 (issued on or about March 20, 1992, pursuant to ECL Articles 15, 25 [Tidal Wetlands], and 34; and 6 NYCRR 608), which condition required Respondent to keep existing snow fences on the bay side in place, by removing and taking same from the area. The failure was alleged to have been observed on September 25, 1992. Staff alleged that such activities are a violation of ECL 25-0401 and NYCRR Part 661.

The Relief Requested:

Staff requested that the Commissioner order Respondent to pay a penalty in a sum not to exceed Ten Thousand Dollars ($10,000), reinstall the snow fence, and remediate adversely affected areas.

The Answer:

Breezy Point Cooperative essentially denied the charge by specifically denying Complaint 4 [that a permit was issued for excavation and deposition], 5 [Special Condition 22's provisions], 6 [that there was an observation on September 25, 1992 that respondent had violated the condition by removing and taking the snow fences from the bay side], 7 [that ECL 25-0401 and 6 NYCRR Part 661 prohibit alteration of regulated tidal wetland or adjacent area without a permit; and ECL 71-2503 provides various penalties], and 8 [that Respondent violated ECL 25-0401 and 6 NYCRR Part 661.l].

FINDINGS OF FACT ("Findings")

  1. On or about March 20, 1992, the Respondent, Breezy Point Cooperative, Inc., 202-30 Rockaway Blvd., Rockaway, NY 11697, was issued Permit No. 2-6309-00024/00001-0 (the "Permit"), pursuant to ECL Art. 15 Title 5 (Protection of Water), Art. 25 (Tidal Wetlands) and Art. 34 (Coastal Erosion Management); and 6 NYCRR 608 (Water Quality Certification)).
  2. Per its terms, the Permit authorized:

    "Excavation of approximately 7,000 cubic yards of sand from the Atlantic Ocean Beach and deposition of the same sand on the bayside beaches of the Breezy Point Cooperative, Inc. Additional sand to be used for deposition on the bayside beaches will be excavated from windblown deposits collected by sand fencing located on the ocean beach."

    The Permit identified the authorized project's location to be at Respondent's address, at "Atlantic Ocean Shoreline at Breezy Point, Rockaway Inlet Shoreline." The project location is hereinafter called the "site."

  3. The Permit stated as a Special Condition:

    "BAY BEACHES - NOURISHMENT

    22. Existing snow fences on the bay side must be kept in place. Sand from these areas shall not be disturbed except to clear existing beach walkways."

    The permit also contained other Special Conditions, some of which required periodic monitoring and reporting of ocean and bay beach profiles.

  4. In its application for a permit, Respondent depicted on two site plans prepared by its consultant, First Coastal Corp., a "sand fence area" running along the Rockaway Inlet Shoreline (the "bay side" of the site). Approximately 4,000 linear feet of sand fences would be required to fence the area as depicted. Pictures documenting the actual existence of sand fences in this area, placed in the manner depicted in the plan, were submitted as part of the application. Typically, Respondent would take these fences down in late spring, generally around May, and then re-erect them in October. Respondent installed these fences to catch sand and limit the sand from accumulating in areas where it was not wanted.
  5. "Sand" fences (also called "snow" fences) are made of wood slats spaced closely together and bound by wire. Sand fences trap sand that is carried by the wind. This is useful in beach management because the trapped sand will cause beach elevation to rise and/or dunes to form.
  6. In the permit, Department Staff required the Respondent to maintain sand fences on the bay side of the site for the purposes of trapping windblown sand and maximizing its accretion rate, and to maximize the stability of the sand that was to be deposited on the bay side pursuant to the permit. Staff's intent was to minimize the need in the future for Respondent to have to again disturb the environment by borrowing sand from the ocean side (Atlantic Ocean Shoreline) of the site. There had been concern over project impacts on the Piping Plover, a federally endangered and state protected species of shorebird which nests on the ocean side beach.
  7. Just prior to permit issuance, on March 2, 1992, DEC Marine Resource Specialist Leslie Adler visited the bay side of the site and observed fences in the area designated as "sand fence area" in Respondent's plans.
  8. Pursuant to their permit, in March 1992, Respondent removed approximately 2,250 cubic yards of sand from the "borrow" area, and another 500 cubic yards from the area around the drift fences (both areas on the ocean side of the site), and transferred the sand to stockpiles on the bay side of the site. In May, 1992, the stockpiled sand was moved into the bay side beaches as planned.
  9. By letter dated April 20, 1992, Aram Terchunian, principal of First Coastal Corp., on behalf of the Respondent, requested an adjudicatory hearing to review Special Condition 22 of the permit, among others. This request was subsequently rejected by the Region 2 Permit Administrator as untimely, because it was a day late. By letter dated June 18, 1992, Mr. Terchunian requested modification of the permit under 6 NYCRR 621.13 to eliminate Special Condition 22, among other requested changes. The record contains no evidence that the requested modification was ever granted, therefore it is found not to have been granted.
  10. Ms. Adler again visited the bay side of the site on September 25, 1992. The sand fences she had previously seen were no longer standing in the designated sand fence area. There were virtually no sand fences standing in the sand fence area. Some sand fences were lying on the beach in a rolled up condition.

DISCUSSION

It is noted that Respondent's consultant, Mr. Terchunian, claimed it was his understanding from communications with Mr. Ferguson, DEC Regional Permit Administrator, which took place after permit issuance, but before Mr. Terchunian's June 18, 1992 modification request, that fences could be removed to gain access to the beach with heavy equipment to move the sand (i.e., for execution of the project), or if sand had to be moved from walkways and in between homes, or to provide access for emergency vehicles. Mr. Terchunian further testified that all the sand deposition on the bay side beaches occurred during May, that fencing was removed from this area to allow sand placement, but that he did not know if the fencing was immediately replaced. Mr. Ferguson was not called to testify.

No findings are made with regard to the above testimony because its relevancy is not established. Assuming arguendo that Mr. Terchunian's understanding was reasonable, it would only explain why fences were down during May -- to allow sand placement -- it does not explain why virtually all the bay side fences were down approximately 4 months later on September 25, 1992.

CONCLUSIONS OF LAW ("Conclusions")



Amendment of Complaint:

  1. Amendment of the Complaint herein after commencement of the hearing to include a reference to ECL 25-0403 in addition to ECL 25-0401 is permitted because adding same is of no legal consequence to Respondent. The addition does not change the alleged basis of Respondent's liability, which is ECL 25-0401 and 6 NYCRR Part 661. ECL 25-0403 is a grant of authority to the Commissioner to do certain things, including placing conditions or limitations in tidal wetlands permits. In and of itself, it imposes no obligations on Respondent, thus, cannot be violated by Respondent, and therefore does not expand the basis of any liability.

    Discussion:

    The theory of liability under ECL 25-0401 is explained in the discussion under Conclusion 4 below. The Complaint would state a cause of action as originally written, without the reference to ECL 25-0403.



    Subject Matter Jurisdiction

    :
  2. The DEC's having filed the Tidal Wetlands Map with the City Register rather than the Queens County Clerk does not deprive the DEC of jurisdiction to enforce the requirements of ECL Article 25 (Tidal Wetlands) in Queens County.

    Discussion:

    Respondent pointed out the uncontroverted fact that the filing of the map setting forth the boundaries of Tidal Wetlands in the County of Queens was filed with the City Register's Office rather than the County Clerk's Office as stated in the enabling statute (ECL 25-0201(4)). Respondent argued that the Department is therefore without jurisdiction to enforce Tidal Wetlands regulations in Queens County because the Department did not strictly comply with the statute. DEC Staff pointed out that such precise issue was raised in a Supreme Court, County of Queens, proceeding, James A. Mills and Grace Ford v. New York State Department of Environmental Conservation and the People of the State of New York, Index No. 9197-92, wherein petitioners sought to preliminarily enjoin a DEC administrative enforcement hearing. In the May 26, 1992 decision, the Supreme Court Justice denied the petition, finding it likely that DEC would prevail on the merits. Since such a finding would not have been possible if the Department did not have jurisdiction to enforce its regulations in Queens, this issue appears to have already been resolved in DEC's favor as a matter of law.

  3. It is uncontroverted that Respondent's proposed excavation (on the Ocean beach) and depositing (on the Bay beach) would be regulated activities under ECL 25-0401, requiring a DEC Tidal Wetlands permit before being undertaken.
  4. Once a permitted regulated activity is undertaken, non-compliance with a Tidal Wetlands permit condition would be a violation of ECL 25-0401, and may be enforced by the Department as such. More precisely, non-compliance with a permit condition turns an otherwise permitted regulated activity into an un-permitted regulated activity.

    Discussion:

    Respondent pointed out that ECL 25-0401 gives the DEC the right to regulate only certain activities (described in the statute) within the Wetlands -- not all activities. Respondent posited that the activity described in Condition 22 of the Permit is not a regulated activity. Respondent argued that DEC should not be allowed to broaden the limitations of the statute by adding conditions to a permit, and then invoking the same penalties for violation of a permit condition as those penalties granted by the Legislature for violations of the statute itself. Staff argued that the conduct of a regulated activity for which a permit has been obtained, in substantial disregard of the conditions limiting the manner of performance, is an activity undertaken outside the scope of the permit. Staff argued that as such, it is an unpermitted activity for which approval is required to be obtained by issuance of a new permit or modification of the existing permit.

    Staff's argument is adopted. The argument may be more clearly expressed by modifying the driver's license analogy made in Respondent's closing brief. As noted by Respondent, a drivers' license (a permit) authorizes the licensee to drive a motor vehicle on public streets in conformance with speed limits and other traffic laws. Violating a speed limit is a violation of the traffic law -- which might cause the Department of Motor Vehicles to suspend or revoke the license, but which does not make one guilty of driving without a license. Modify Respondent's analogy to a conditioned driver's license, such as one that requires the driver to wear corrective lenses. With such a license, driving without corrective lenses is the same thing as driving without a license -- there is no authority to drive unless the lenses are worn. By analogy, there is no authority to perform a regulated activity in a tidal wetland unless all permit conditions are complied with -- performing the regulated activity without adhering to permit conditions is the same thing as performing the regulated activity without a permit. By further analogy, failure to comply with a permit condition would not be a violation absent performance of the regulated activity, just like not wearing corrective lenses would not be a violation absent driving.

  5. DEC's issuance of the Permit to Respondent pursuant to ECL Article 25 (Finding 1 above), and Respondent having undertaken the regulated activities of excavation and depositing (Finding 8) gives DEC the authority to enforce violations of the permit's conditions as violations of ECL 25-0401, because violation of a permit condition would turn the excavation and depositing (Finding 8) into an unpermitted activity (Conclusion 4).

    The Violation:

  6. Conclusion 5 and Findings 3, 4, 7 and 10 establish that the Respondent violated ECL 25-0401 on or about September 25, 1992 by having failed to keep existing snow fences on the bay side in place as required by Special Condition No. 22 of DEC Permit No. 2-6309-00024/00001-0 (issued pursuant to ECL Art 25 (Tidal Wetlands) and other provisions).

    Authorized Relief:

  7. Because of its violation, the Commissioner is authorized by ECL 71-2503 to impose on Respondent the relief requested by Staff: i.e., to Order Respondent to pay a penalty in a sum not to exceed Ten Thousand Dollars ($10,000), reinstall the snow fence, and remediate adversely affected areas.

    Discussion:

    The Commissioner may impose the above mentioned relief under authority of ECL 71-2503. This statute authorizes the Commissioner to impose on any person who violates any provision of ECL Article 25, a civil penalty not to exceed ten thousand dollars for every such violation. Each day of a continuing violation is deemed a separate violation (see sub div. (1)(a)). This provision amply covers the monetary portion of Staff's requested relief.

    The Commissioner also is given the power to direct the violator to cease and desist from violating the act, and to restore the affected tidal wetland or area immediately adjacent thereto to its condition prior to the violation, insofar as that is possible within a reasonable time and under the supervision of the commissioner (see subdiv. (1)(c)). This provision covers an order to reinstall the fence (necessary to cease the violation) and remediate adversely affected areas. This provision (subdiv. (1)(c)) provides authority for a cease and desist order in addition to that provided for what essentially would be emergency situations (see subdiv. (1)(b)); thus Respondent's implication in its briefed argument that such an order is authorized only in emergency situations is unfounded.

RECOMMENDATIONS

  1. The Commissioner should find that the Respondent violated ECL 25-0401 on or about September 25, 1992 by having failed to keep existing snow fences on the bay side in place as required by Special Condition No. 22 of DEC Permit No. 2-6309-00024/00001-0 (issued pursuant to ECL Art 25 (Tidal Wetlands) and other provisions).
  2. For its violation, the Commissioner should Order Respondent to pay a penalty of Ten Thousand Dollars ($10,000) within 60 days of receipt of the Order.

    Discussion:

    On opening the record, Staff indicated that it was seeking the maximum penalty because it perceived the violation to be substantial in nature: (1) the area of fencing involved is more than a few thousand feet; (2) Staff believed that "significant" amounts of sand have not accreted as they would otherwise; (3) the fence requirement was intended to be a pilot program, thus now Staff has been denied an opportunity to determine its effectiveness; and (4) violation of an express condition warrants a substantial penalty in fairness to others who do observe the conditions of their permits. In its brief, Staff noted evidence from Respondent's witness indicating that the fences had been down on occasions before September 25, 1992 and therefore that Respondent could have been held liable for violations on the other occasions. Respondent in its brief essentially argued that it could not believe that the legislature intended to impose a penalty of the severity of $10,000 per day upon a party who complied with ECL 25-0401 by obtaining a permit, but then is accused of violating a permit condition which is not, in and of itself, a regulated activity and a condition which Respondent alleges to have been waived.

    The parties may debate the efficacy of Special Condition 22 -- but the place for that is a permit modification proceeding, not here. What can't be debated is that the fences were required to be maintained, and that Respondent's failure to maintain them deprived the Department from gathering data related to their efficacy in establishing and/or maintaining beach profiles (see Finding 3). It also can't be debated that Special Condition 22 was intended to minimize the need to move sand from the ocean side to the bay side, and thus minimize any environmental disruption associated therewith (Findings 5 and 6).

    Permit conditions should be taken at face value and followed to the letter. Variation from a condition without prior permission deprives the Department of the opportunity to address environmental impacts associated therewith before they occur - in derogation of the public interest and the Department's reason for being. Permit conditions are there to protect the environment and to assist the Department in doing so. If a condition is not really needed, there are permit modification procedures available to the permittee to have such a condition removed (see 6 NYCRR 621.13). Although Respondent here requested such a modification, the request has not been granted (Finding 9). Ignoring what is perceived to be an unneeded condition before it is removed in accordance with prescribed procedure, does violence to the regulatory scheme and its goal of protecting tidal wetlands. In fairness to others who comply with their requirements, a significant penalty is warranted (see Commissioner's 6/20/90 Civil Penalty Policy, p.8 of 15).

    In light of the importance to the regulatory scheme, in fairness to others, and the fact that the non-compliance involved thousands of feet of fencing, the requested $10,000 penalty appears reasonable.

  3. The Commissioner should further Order Respondent to reinstall the snow fence, and to remediate adversely affected areas, within a reasonable time, under the Department's supervision.

    Discussion:

    It is noted that in Staff's closing brief, Staff made its request for remediation more specific that what it requested in the complaint, to require Respondent to submit for DEC Region 2 BMHP approval a plan for supplemental beach nourishment on the bay side beach to include Respondent's obtaining and transporting 300 cubic yards of clean sand from a DEC-approved off-site source to the bay side beach, and that the plan be implemented within 30 days of approval. The brief indicates that the amount of sand is equivalent to that which Mr. Terchunian estimated could have accreted had the sand fences remained in place.

    The specifics mentioned above appear to be reasonable in light of the record, and they appear to come within the scope of the more general terminology recommended. The more general language is recommended, however, only because the specifics were requested for the first time in Staff's closing brief which was submitted simultaneously with Respondent's closing brief -- thus it was not clear that the specifics of remediation were in issue at the time of the hearing.

Appendices:

A. Notice of Hearing and Complaint

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