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Kinneary, Terrence - Order, May 9, 1994

Order, May 9, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Articles 15 and 25 of
the New York State Environmental Conservation Law (ECL) and Parts 608 and 661 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR)

- by -

TERRENCE KINNEARY,

Respondent

ORDER

R2-3536-91-03
and
R2-0391-92-09

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint issued on July 20, 1993, an administrative enforcement hearing was held before John H. Owen, Administrative Law Judge ("ALJ"), on September 21, 1993 at the Department's Region 2 Office located in Long Island City, New York. The Department Staff appeared by Steven Goverman, Esq. The Respondent Terrence Kinneary appeared pro se.
  2. Upon review of ALJ Owen's Hearing Report, a copy of which is attached, I concur with its Findings of Fact, Conclusions and Recommendations except as noted below.

    July 8, 1993 Incident

  3. The ALJ has found that the charges regarding the July 8, 1993 incident should be dismissed for several reasons. He finds (a) that the placement of fill in the yard of the new house caused no adverse environmental impacts and was therefore de minimis; (b) that this incident was part of charges which the Department Staff agreed to withdraw; (c) that there was no evidence of placement of fill in the channel; and (d) that the Staff did not prove that the Respondent was the owner of the site at the date of the incident or, if he was, Staff did not prove that he was not an innocent landowner. Although I concur that there is inadequate proof that fill was placed in the channel, for the reasons stated below, I do find that Respondent committed a violation by placing fill in the yard area without a permit.
  4. The placement of fill in a regulated tidal wetland without a permit is a violation of ECL Article 25 and 6 NYCRR Part 661 [see 6 NYCRR 661.4(ee)(1)(ii)] which requires a permit (6 NYCRR 661.8). The ALJ erred in finding that it is necessary to prove that the placement of fill is accompanied by any particular environmental impact. Proof of such impact or potential impact can be relevant to the size of the penalty and whether remediation is appropriate, but is not an element of the proof of whether a violation was committed.
  5. Staff stated at the hearing that it was not pursuing charges concerning the construction of the so-called "new house." However, there could not have been any confusion that the charges related to the placement of fill in the backyard area of the house were not withdrawn. Any potential confusion would have ended when Staff subsequently placed proof on the record concerning this incident as part of its case in chief.
  6. While the proof concerning whether Respondent Kinneary owned the site could have been established in a straightforward manner by introducing the deed to the property in the record, I find that the preponderance of the evidence in the record shows that Respondent Kinneary was the owner of the site at the time of the July 8, 1993 incident.
  7. As of that July 8, 1993, the Respondent had submitted an application for a tidal wetlands permit at the site. The Notice of Availability for Review for that application (Exhibit 8) listed the Respondent as the Applicant-Permittee-Owner. In fact, the rules governing tidal wetland applications require a statement identifying the owner of the property where the regulated activity is proposed to occur [6 NYCRR 661.12(a)(1)]. Respondent was aware that the application and the public notice identified him as the site owner and he did not object to or correct the characterization of his interest. Furthermore, as part of the permit application, Respondent Kinneary commissioned a survey of the property, an investment unlikely to be taken by someone other than the site owner.
  8. I do not concur with the ALJ's conclusion that the Staff's failure to introduce the deed to the property or to call Respondent Kinneary to testify as to his ownership creates an inference that he did not own the property. One can just as easily take an inference unfavorable to Respondent Kinneary from his failure to produce the property deed or to testify as to ownership. Given that Respondent had never answered the complaint or otherwise put Staff on notice that he contested the allegation in the complaint that he was the property's owner, the proof submitted by the Staff is adequate to establish his ownership.
  9. All evidence in the record points to the fact that Respondent Kinneary was the only individual who directly or indirectly controlled the site and who was responsible for site alterations. Under these circumstances, there is no basis to conclude he was an innocent victim of someone else's actions. It is not necessary for Staff to present evidence excluding the possibility that a third party not under Respondent's control was responsible for the placement of the fill; it is only necessary that Staff shows that a preponderance of the evidence supports the finding that he was involved, directly or indirectly.
  10. The placement of the mound of dirt is a relatively minor offense and does not warrant a maximum penalty assessment. However, the presence of the dirt has the potential to adversely impact the wetland and hence its removal is justified.

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

  1. Respondent is found to have committed violations of both Parts 608 and 661 of 6 NYCRR on or about September 4, 1992 and again on or about July 13, 1993 in that he did conduct unpermitted activities.
  2. With respect to the violations that occurred on or about September 4, 1992, Respondent is assessed a civil penalty of THIRTEEN THOUSAND FIVE HUNDRED DOLLARS ($13,500), which shall be due and payable thirty (30) days after the date of service of this Order on Respondent.
  3. With respect to the violations that occurred on or about July 13, 1993, Respondent is assessed an additional civil penalty of TWO THOUSAND DOLLARS ($2,000), which shall be due and payable thirty (30) days after the date of service of this Order on Respondent.
  4. Respondent is directed to remove all materials that were placed on the subject property on or about July 13, 1993, within thirty (30) days after the date of service of this Order on Respondent.
  5. All charges that relate to incidents occurring on or about February 28, 1991 and on or about May 13, 1993 are dismissed with prejudice.
  6. Respondent Terrence Kinneary is ordered to carry out the actions specified at Number 4 of the "Recommendations" section of the attached Report, Page 13 thereof, which are incorporated as part of this Order, within thirty (30) days after the date of service of this Order on Respondent.
  7. All communications between Respondent and the Department concerning this Order shall be made to the Department's Region 2 Director, 47-40 21st Street, Long Island City, New York 11101.
  8. The provisions, terms and conditions of this Order shall bind the Respondent, its officers, directors, 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: LANGDON MARSH, ACTING COMMISSIONER

Dated: May 9, 1994
Albany, New York

TO: Mr. Terrence Kinneary (CERTIFIED MAIL)
621 Cross Bay Boulevard
Broad Channel, New York 11693

Steven Goverman, Esq. (INTERAGENCY MAIL)
Assistant Regional Attorney
Region 2
NYS Department of Environmental Conservation
47-40 21st Street
Long Island City, New York 11101-5407

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter of

the Alleged Violations of Articles 15 and 25 of
the New York State Environmental Conservation Law (ECL) and Parts 608 and 661 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR)

by

TERRENCE KINNEARY,

Respondent

DEC File Nos. R2-3536-91-03 & R2-0391-92-09

HEARING REPORT

by

____________/s/_____________
John H. Owen
Administrative Law Judge

Proceedings

This matter involves Respondent allegedly placing fill in a protected tidal wetland, in a protected adjacent area, and in protected navigable waters of the State at Respondent's alleged residence without having first obtained the required permit from the Department of Environmental Conservation.

Pursuant to a duly served Notice of Hearing with Complaint attached, dated July 20, 1993, the New York State Department of Environmental Conservation (the "Department" 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"), Parts 608 and 661, Articles 15 and 25 of the New York State Environmental Conservation Law ("ECL"), against Terrence Kinneary ("Kinneary").

Kinneary neither served nor filed any answer.

The subject site, Kinneary's alleged residence, is located at 629 Cross Bay Boulevard, Broad Channel, Queens, New York 11693.

In accordance with the Notice of Hearing, an adjudicatory hearing concerning the site was convened before Administrative Law Judge ("ALJ") John H. Owen on September 21, 1993 at the Department's Region 2 Headquarters at Long Island City, New York. Steven Goverman, Esq. ("Goverman"), Assistant Regional Attorney, appeared on behalf of the Department Staff. Kinneary appeared as well, without counsel or anyone else to assist him.

At the opening of the hearing, Kinneary requested an adjournment of the hearing, stating that he desired to retain counsel. On behalf of the Staff, Goverman opposed any adjournment, citing the fact that Kinneary had given no prior notice of his intention to seek an adjournment, that the request was last-minute in nature, that Kinneary had been personally served with the Notice of Hearing and Complaint some 55 days prior to the hearing, that Kinneary had acquired the services of two experts each of whom and separately consulted with the Staff on Kinneary's behalf, one conference having been held prior to the service of the Notice of Hearing and Complaint and the other afterwards, that apart from the duly served Notice of Hearing, Kinneary and at least one of his retained experts were well aware of the hearing date, time and place, well prior to the hearing, and that the Staff had spent many hours in preparation for the hearing, including arranging the appearance of a Staff expert (who was in fact present) from another Region.

Kinneary also stated that he thought that he was eligible for a certain program that had resulted from an agreement between the Department and the Broad Channel Civic Association whereby certain fill placement violations involving certain dates of violation and certain maximum fill limitations would obtain certain enforcement concessions; however, Goverman assured the ALJ that Kinneary was not only ineligible for the program but that he (Goverman) had personally so advised Kinneary well prior to the service of the Notice and Complaint.

After considering the matter, the ALJ denied Kinneary's application for an adjournment to retain counsel, concluding that there was not a single good-faith, satisfactory reason or circumstance on the basis of which to delay the long-scheduled hearing.

At that point Kinneary was advised by the ALJ that all of his rights would be protected including his right to make an opening statement, the right to cross-examine Department witnesses, the right and time to study any and all Department evidence before the ALJ ruled on its admissibility into evidence, the right to object to the Department's oral and documentary evidence, the right to call himself or any other person as a witness in his behalf, the right to propose any documents be admitted into evidence, the right to make a closing statement and/or to submit a post-hearing memorandum. Further Kinneary was advised by the ALJ where we were at each stage of the proceeding and what his rights were at each stage.

Kinneary appeared to be reasonably intelligent and he specifically indicated that he understood all of the rights explained to him; indeed, he made a rather astute inquiry as to whether his request for an adjournment to retain counsel had been taken down on the record by the stenographer--and he was assured by the ALJ that it, and all of the discussion concerning it, had been taken down so as to be part of the record of this proceeding.

Of these rights Kinneary did exercise the right to make an opening statement (in which he stated that grass was growing in the alleged fill area allegedly proving that filling was not continuing as alleged by the Staff and he also contested the Staff's estimate of the square footage of the area allegedly filled) and he also indicated that he would exercise his right to submit some form of post-hearing memorandum. Although the ALJ had supplied Kinneary with a card setting forth the ALJ's office address and telephone number, no post-hearing material was received from Kinneary (Goverman did submit a post-hearing memorandum) within the two weeks allowed or thereafter and none has been received as of the issuance of this report.

The Department Staff called as witnesses: Louis Chiarella, Regional Manager of the Bureau of Marine Habitat Protection in Region 1; Gregory A. Fay, a Law Enforcement Officer for Region 2; and Lisa Brown, Marine Resources Specialist, Bureau of Marine Habitat Protection, Region 2.

Some 17 documents were received in evidence.

Lastly, Kinneary was advised of his continuing, post-hearing right to counsel, that is his right even after the close of the hearing to retain counsel (or on his own) to take action complaining concerning any objected-to aspect of the proceeding, including the denial of an adjournment to retain counsel.

The record closed upon receipt of the Department's post-hearing memorandum on October 5, 1993.

The Charges, the Applicable Law and the Factual Proof Required

Kinneary was charged with violating both ECL 25-0401 and ECL 15-0505 on four separate occasions.

ECL 25-0401 and 6 NYCRR Part 661 prohibit the alteration of any regulated tidal wetland or adjacent area without having first obtained the required permit from the DEC and ECL 15-0505 and 6 NYCRR Part 608.4 prohibit the placement of fill in the navigable waters of the State without a permit issued by the DEC.

It follows then that in order for the ECL 25-0401 charge to be sustained the Department Staff must have proven four (4) elements of this charge: 1) that the site is a regulated tidal wetland and/or adjacent area; 2) that the site was altered; 3) that Kinneary is responsible for the alteration; and, 4) that Kinneary had no permit from the DEC to so alter; and that as to the ECL 15-0505 charge, the Staff must have proven four (4) elements: 1) that the site includes navigable waters of the State; 2) that fill was placed in those waters; 3) that Kinneary is responsible for such fill placement; and, 4) that Kinneary had no permit from the DEC to so place fill.

Discussion

The proof showed that the property which Kinneary allegedly owns and resides at included a tidal wetland in the form of a shoal mudflat which was inundated by the tidal action of the Shad Creek to the west which is an estuary of Jamaica Bay.

At an unproven time prior to the present charges, someone (allegedly Kinneary) had been in the process of constructing at the site a residence supported by piles driven into the tidal wetland and/or the adjacent area. Before completion of the construction, the house burned down leaving basically only the pilings.

The present charges relate to Kinneary allegedly placing fill in and around the area of the pilings as well as in a channel from the site to Shad Creek. The house on piles would have received a DEC permit since, according to Goverman, there was only minimal intrusion (by the piles) into the wetland and/or adjacent area, if Kinneary had properly pursued such a permit. The fire which tragically eliminated the superstructure of the house but thereby exposed the wetland to sunlight brought about a situation which would be even less objectionable to the Department. When, however, Kinneary allegedly began to place a large volume of fill in the wetland area of the pilings and the narrow channel at the northern boundary of the site, the Department Staff brought the present charges based upon its assessment that this was the most untoward ecological situation at the site to that date.

The Staff's complaint charges violations at the site on four (4) separate dates: 1) February 28, 1991; 2) September 4, 1992; 3) May 13, 1993; and, 4) July 8, 1993.

1. February 28, 1991

While the complaint sets forth the date of February 28, 1991 the proof showed (by way only of a Cause Initiation Form and violation ticket) that on February 18, 1991 DEC law enforcement officer J. G. Sibbert apparently "...observed work being conducted at 629 Crossbay [sic] Boulevard in an adjacent area to wetland ...and building a structure in a tidal wetland area without a permit." (Cause Initiation Form, Exhibit 2). The subject of the Cause Initiation Form and the ticket (Exhibit 3) was Kinneary whose address on both documents was set forth as 1034 Connetquot Avenue, Central Islip, New York 11722.

The proof also showed that on February 22, 1991 DEC witness Chiarella was at the site and took two photographs. Chiarella also described a house then under construction at the site and it seems clear enough that this house, which was located by Chiarella as well away from the water, well to the east of the piles, and near the street (Cross Bay Boulevard), is the same "structure" noted by Sibbert and (although apparently in an area protected as adjacent to the wetland) is the same house as to which Goverman told the ALJ in his (Goverman's) opening statement:

"Mr. Kinneary rebuilt a new house further back from the water, within an adjacent area, which in itself is a violation of law but one that need not concern us today..." (Hearing Transcript, Page 14, emphasis added.)

The main thrust of Chiarella's testimony had to do with the partly wetland and partly adjacent area nearer to the water where the piles which had supported the burned-down house were located.

Chiarella stated that "fill" had been "placed" among and around the piles and he had taken the two photographs (Exhibits 4 and 5) of this area. There was no proof offered as to the nature of the "fill" nor was there any proof offered to provide any comparison between the subject area at some past date and as shown in the photographs. Even if some "fill" had been placed there was no proof whatever of when that might have been; in other words, there is nothing to exclude the possibility that the situation was brought about by other causes such as natural tidal action.

The Staff's proof as to unnatural filling consisted of the conclusion that filling was carried out and the February photographs. The ALJ must set aside conclusory evidence not supported by proof of facts which support the conclusion. The photographs do not provide any support in that they totally fail to exclude the proposition that the irregularly shaped "fill" is in fact silt that was placed there by the ebb and flow of natural tidal action, including violent action such as in storms and even hurricanes over the years.

As to the pilings themselves (and apart from the fact that Goverman really had no problem with even a house on the piles) there is no proof (not even any estimate) as to when they were driven, so that there is no parameter by which to judge the timeliness of the Staff's action; and from what the Staff's experts testified to at the hearing it seems rather clear that presently removing the piles would cause more environmental damage than had been caused as a result of them having been driven originally, whenever that took place--and it further appears that the same would be true as to the removal of the so-called fill. As Chiarella testified:

"Q: At the time you saw the shoal mud flat at the site [2/22/91], was it a valuable and productive wetland?

A: Yes, it was. It appeared to be very productive as I had previously stated. There were tidal pools within there that were supporting killifish, fungala species, and there were various encrusting organisms on the piles, intermorpha which is an algae, and it also appeared that there were little plugs of intertidal marsh grass, spartina alterniflora around the periphery of the area on both sides of the property line." (Hearing Transcript, Page 38)

Lastly as to the erroneously dated February 1991 charges there is no satisfactory proof of Kinneary's ownership of the site or, assuming "fill" was placed, Kinneary's responsibility for the placement. Sibbert apparently did not speak to Kinneary such that even Sibbert's hearsay papers offer no proof on these points and Chiarella did not speak with Kinneary at the site but only later (March 21, 1991) at the DEC Region 2 office where a possible permit for the new house (near the street) was discussed.

As noted, Kinneary's address on the February 1991 violation papers was Central Islip in Suffolk County and not the site at Broad Channel, Queens County. No deed to 629 Cross Bay Boulevard, Broad Channel (the site) was offered in evidence. Describing Kinneary as "Applicant-Permittee-Owner" in a later permit document (Exhibit 8) is insufficient as is evidence that Kinneary was later discussing some form of a permit for the site and as is a land survey of the site, undated, stated to have been commissioned by Kinneary. With no deed, no admissions and no other proper evidence on these points Kinneary, so far as this record shows, could have been no more than a contractor, friend of the owner, or some other representative not responsible for any violations that may have been committed at the site.

Indeed, there is a serious question as to whether the pilings area as it was in February 1991 was not actually a pre-existing condition ante-dating the tidal wetlands mapping procedures. Chiarella's testimony that the former house on the piles is shown on the relevant Tidal Wetlands Map (Hearing Transcript, Page 29) supports this view. As noted, there is no proof of when the alleged fill was placed. It follows that placement before the effective date of the mapping procedures (see ECL 25-0401(1) and (2)) including the prior moratorium period (see ECL 25-0202) has not been excluded, such that the pile area would not be subject to regulation except to the extent that it was altered subsequent to that effective date.

Thus as to the February 28, 1991 charge of altering a tidal wetland and/or adjacent area (ECL 25-0401, 6 NYCRR Part 661) the Staff has failed to prove elements: 1) that the site was in an area then subject to regulation; 2) that there was any unnatural alteration; and, 3) that Kinneary was responsible for any unnatural alteration, while proving only element 4, that Kinneary had no relevant DEC permit.

As to the February 28, 1991 charge of placing fill in navigable waters (ECL 15-0505, 6 NYCRR Part 608), the proof did show that the pilings area was in navigable waters or at least in an adjacent area and, in any case, this is subject to official notice (element 1); yet as to element 2 (fill being placed there) there has been a failure of proof in that, as with the tidal wetlands charge, the proof has failed to exclude the situation having been brought about by some natural tidal action at some unknown time in the past; as also with the tidal wetlands charge there has been a failure of proof (element 3) that Kinneary was responsible, assuming fill had been placed by other than natural tidal action; and, as with the tidal wetlands charge, it was proven that Kinneary had no relevant DEC permit.

2. September 4, 1992

On September 4, 1992, as he testified, DEC law enforcement officer Gregory A. Fay went to the site and observed that fill had been placed in the area of the piles to the extent of covering them over. Fay also had a conversation with Kinneary in which Kinneary admitted that he had performed that filling.

According to Fay there was also a mound of dirt fill present in the area over the piles which he assumed was going to be also spread over the area.

Staff witness Lisa Brown, who was with Fay at this time, confirmed Fay's observations and his conversation with Kinneary.

This testimony is credited and thus there has been proven on the September 4, 1992 tidal wetlands charge: 1) that the area altered was regulated in that the filling changed the area as evidenced by the contrast between the February 22, 1991 photographs (Exhibits 4 and 5) and the photographs taken September 4, 1992 (Exhibits 16 and 17); 2) as stated, the site was altered; 3) Kinneary admitted responsibility; and 4) Kinneary did not have the required DEC permit.

As to the navigable waters charge there has been proven 1) the area includes navigable waters or at least protected adjacent areas; 2) fill was placed in those areas; 3) Kinneary admitted responsibility; and 4) Kinneary had no relevant DEC issued permit.

3. May 13, 1993

There simply was no proof offered as to any alleged violation by Kinneary at the site on or about May 13, 1993.

4. July 8, 1993

On July 8, 1993 Officer Fay returned to the site, claims to have seen another mound of dirt in the area and noticed some "fill" in the channel that leads from the site to Shad Creek. Apparently Kinneary was not present at this time.

While Fay's testimony is accepted as true it fails to constitute proof of the indispensable elements of either the tidal wetlands charge or the navigable waters charge.

More specifically, while element 1 of each charge was proven, namely, that the pile area was a regulated area since at least September 4, 1992 (the first date that the record shows alteration) as was the channel all along, there has been a failure of proof of element 2 of each charge which involves taking some action at the subject area contrary to law.

The relevant actions allegedly taken are, respectively, placing a dirt mound upon the pile area and placing fill in the channel.

As to the dirt mound (stated by Fay to be in the "back yard" [Hearing Transcript, p. 69]), no proof was offered as to the size or specific nature of the mound.

As to the mound being in the back yard, this relates to Goverman's exemption of the "new house" from prosecution (see Page 4 above of this Report). Goverman did not make clear whether he was exempting merely the dimensions of the house itself or whether some front yard, side yard(s) or back yard was included, that is, whether he intended to reserve for prosecution, e.g., the planting of flowers around the outside of the house which would have received a permit if one had been applied for.

Without any proof of the size or nature of the mound and no proof of the effect, if any, upon any organisms beneath it, any violation here must be considered de minimis

There is a further reason why prohibited action has not been proven as to the navigable waters charge as to placing fill in the channel, namely, there was no proof of the state of the channel at any time prior to Fay's observation and thus no proof as to when or by whom the fill may have been placed, especially with the property on the other (far) side of the channel being in different ownership.

In any case and regardless of whether I am correct in this holding the failure to prove the respective element 3 (that Kinneary was responsible for the prohibited actions) should bring about the same result: dismissal. This is for the reason that even as of July 8, 1993 Kinneary had not been proven to be the owner of the site or to even reside there. There was no relevant admission from him and nothing else to establish his responsibility.

Here the permit form (Exhibit 8) and the land survey (Exhibit 6) must be considered much more closely for the reason that while these documents were submitted only subsequent to the February, 1991 charges (see Page 4 et seq. above of this Report) they were submitted prior to the charge presently under discussion.

The permit form ("Notification of Availability for Review") is a pre-printed DEC form with one printed section reading "Applicant- Permittee-Owner." Below this heading some Staff member has typed "Terrence Kinneary." In the first place this heading is contradictory in that, at least in Kinneary's case, one is either (not both) an "Applicant" or "Permittee". Secondly, if "Permittee" is considered deleted, the remaining phrase "Applicant-Owner" does not fix Kinneary as the owner any more than a non-owner applicant such as a contractor.

The survey has endorsed upon it "Prepared for Terrence Kinneary" yet it says nothing about his status whether that of contractor, a party to a conditional contract to purchase the site (seeking to settle with the DEC prior to taking title), or the actual owner.

Perhaps, above all else, the proof has failed to exclude the possibility that, even if Kinneary was the owner of the site, the mound was placed there by a contractor or someone else, unknown to Kinneary and without his approval, perhaps while Kinneary was at his Suffolk County address.

In civil litigation where a party fails to produce a logical witness available to the party, an inference may be taken that the witness's testimony would have been adverse to that party. The same result should follow from the failure to produce a certified copy of a public document (the deed) readily available by even mail and messenger.

This adverse inference is logically considered to be added to the ordinary burden of proof (preponderance of the evidence) that the Staff is bound to satisfy.

The Staff rested its case without calling as a witness Respondent Kinneary who was present throughout the hearing. When so resting its case, the Staff had totally failed to prove, even prima facia, that Kinneary was responsible for the mound.

The failure to call Kinneary as a witness for the Staff creates even a further inference against the Staff's case. Kinneary could have been called and asked whether he owned the site or what other connections he had to it; and even if he invoked his 5th Amendment privileges there would result an inference, invaluable to the Staff, against Kinneary. See In Re Cohen, 7 NY 2nd 488, 501 and Marine Midland Bank v. John E. Russo Produce Co., 50 N.Y. 2nd 31 (1980).

There would be some risk in the Staff calling Kinneary as a witness, i.e., if Kinneary testified that he was not the owner and not otherwise responsible, the Staff would be faced with its usual burden of proof plus the adverse inference arising out of the failure to produce the deed as against Kinneary's unrefuted testimony that he was not responsible. (Of course, if later the deed or other evidence showed that Kinneary was not telling the truth he would be subject to prosecution for perjury.) As it was, however, the Staff's usual burden of proof plus the double adverse inferences against its showing totally prevent a finding that the Staff has proven Kinneary to be the owner of the site or to be otherwise responsible for any violation there.

Here again the Staff has only proven, in addition to the fact that the pile area and channel were protected areas on and well prior to July 8, 1993, that Kinneary had no relevant DEC permit.

The relief requested by the Staff is a $10,000 civil penalty for each of the alleged four tidal wetlands violations and a $5,000 civil penalty for each of the alleged four navigable waters violations. This request obviously includes a total $15,000 civil penalty for the two alleged violations represented by the charges laid on or about May 13, 1993 even though not one iota of proof was offered at the hearing as to these alleged violations.

The Staff also requests that Kinneary be ordered to remediate the site by removing all fill allegedly placed by him.

There appears to be at least three problems with this request: First, it would involve returning the site to its pre-February 1991 condition, but there is apparently no one in the Department who knows what that condition was. Secondly, it would appear that to remove not only the pre-February 1991 "fill" but the piles as well would cause greater ecological damage than would be caused if the condition as noted in February 1991 were restored as it was. As stated, the Department had no substantial dissatisfaction with the ecological situation in the past. The third problem here is that Respondent has not been shown responsible for the condition as it appears in the February 1991 photographs, so that even if removing the piles and silt was ecologically desirable it would have to be carried out at public expense in view of the failure of the relevant claim against Kinneary, with the same being true as to any necessary dredging of fill from the channel.

Considering the civil penalty relief requested by the Staff in the light of the rather widespread failure of proof here, and noting that Kinneary may only be the subject of a civil penalty (or a Commissioner's order to remediate the site) to the extent that he has been found responsible for violations, what remains is one possible $10,000 civil penalty for the one tidal wetlands violation and one possible $5,000 civil penalty for the one navigable waters violation.

Reference to the Commissioner's Tidal Wetlands Enforcement Guidance Memorandum, issued February 8, 1990, which appears to be consistent with the Commissioner's Civil Penalty Policy, issued June 20, 1990, reveals that the civil penalty calculation is to begin with the maximum penalty and may be adjusted downward based upon certain factors; namely, 1) Economic Benefit; 2) Environmental Threat; 3) Violator Conduct; and, 4) Deterrent Effect.

Seeing no reason why the same method should not be employed as to a civil penalty concerning the navigable waters violation, I shall apply the same method as to the civil penalty for each type of violation.

As to economic benefit, it appears rather clearly that Kinneary, while investing funds and labor in over-filling the pile area, gained no financial profit or other monetary benefit, such that the penalty upon each charge should be reduced by ten (10%) percent.

As to environmental threat, there was, as noted, a favorable ecological situation vis-a-vis the pile area as shown in the February 1991 photographs; however, the later burying of the pile area substantially destroyed the ecological system then in place, such that there should be no reduction of the penalty amount on the basis of this factor.

As to violator conduct, it would appear that Kinneary was well aware of the fill restrictions, that the fill placement for which he was proven responsible was willful, and that he was unwilling to settle making this proceeding necessary, so here again there should be no reduction.

Lastly concerning the penalty factors it would appear that even the maximum penalty may well not have any deterrent effect upon Kinneary, so that no reduction is in order here either.

Findings of Fact

  1. There is insufficient evidence to hold Respondent liable under the charge laid on or about February 28, 1991 concerning altering protected tidal wetlands and/or adjacent areas without a DEC permit, in that, as previously discussed, the proof failed to show that the subject pile area was subject to regulation in its then state, that there was any unnatural alteration of that area, or that Kinneary owned the site, resided there or would be otherwise responsible for any violation at the site.
  2. There is insufficient evidence to hold Respondent liable under the charge laid on or about February 28, 1991 concerning placement of fill in protected navigable waters and/or adjacent areas without a DEC permit, in that, as previously discussed, the proof failed to show that any "fill" was placed in the pile area, there being no proof to exclude natural tidal action as the cause of the placement and configuration of whatever material surrounded the piles; and the proof has also failed to show that, even if fill had been placed in the pile area, that Kinneary was responsible for that, there being lacking specific proof of ownership, residence, or any other responsibility.
  3. Under the charge laid on or about September 4, 1992 Respondent did in fact alter a protected tidal wetland and/or adjacent area without a DEC permit, by over-filling the pile area, as he admitted, thus bringing about a prohibited alteration of the area as then under protection of law.
  4. Under the charge laid on or about September 4, 1992 Respondent did in fact place fill in protected navigable waters and/or adjacent areas without a DEC permit, here again by over-filling the piles, as he admitted, with the waters there then under protection of law.
  5. There simply is no evidence that Respondent altered a protected tidal wetland and/or adjacent area without a DEC permit under the charge laid on or about May 13, 1993.
  6. There simply is no evidence that Respondent placed fill in protected navigable waters and/or adjacent areas without a DEC permit under the charge laid on or about May 13, 1993.
  7. The permit form and the land survey submitted subsequent to February 1991 charges but prior to the July 1993 charges are nevertheless entirely equivocal and unprobative as to responsibility.
  8. There is insufficient evidence to hold Respondent liable under the charge laid on or about July 8, 1993 concerning altering protected tidal wetlands and/or adjacent areas without a DEC permit, in that, as previously discussed, the proof failed to establish that the "mound" in the "backyard" was not included in the exemption from prosecution, that Kinneary was responsible for its placement, or that it was, in any case, anything more than de minimus.
  9. There is insufficient evidence to hold Respondent liable under the charge laid on or about July 8, 1993 concerning placing fill in protected navigable waters and/or adjacent areas without a DEC permit, in that, as previously discussed, there was no proof of the state of the channel prior to the alleged fill placement nor any proof by way of deed, lease, admission or any other basis to conclude that Kinneary was responsible.

Conclusions of Law

  1. Respondent did not violate ECL 25-0401 (6 NYCRR Part 661) prohibiting the alteration of protected tidal wetlands and/or adjacent areas under the charge laid on or about February 28, 1991.
  2. Respondent did not violate ECL 15-0505 prohibiting the placement of fill in navigable waters and/or adjacent areas under the charge laid on or about February 28, 1991.
  3. Respondent did in fact violate ECL 25-0401 (6 NYCRR Part 661) under the charge laid on or about September 4, 1992.
  4. Respondent did in fact violate ECL 15-0505 (6 NYCRR Part 608.4) under the charge laid on or about September 4, 1992.
  5. Respondent did not violate ECL 25-0401 (6 NYCRR Part 661) under the charge laid on or about May 13, 1993.
  6. Respondent did not violate ECL 15-0505 (6 NYCRR Part 608.4) under the charge laid on or about May 13, 1993.
  7. Respondent did not violate ECL 25-0404 (6 NYCRR Part 661) under the charge laid on or about July 8, 1993.
  8. Respondent did not violate ECL 15-0505 (6 NYCRR Part 608.4) under the charge laid on or about July 8, 1993.
  9. Having violated both ECL 25-0401 and ECL 15-0505 under the charges laid on or about September 4, 1992, Respondent is exposed to a civil penalty and a Commissioner's remediation order.

Recommendations

  1. All charges laid against Respondent on or about February 28, 1991, May 13, 1991 and July 8, 1993 should be dismissed with prejudice against renewal.
  2. For the violation of ECL 25-0401 (6 NYCRR Part 661) under the charge laid on or about September 4, 1992 Respondent should be assessed a civil penalty in the amount of NINE THOUSAND DOLLARS ($9,000).
  3. For the violation of ECL 15-0505 (6 NYCRR Part 608.4) under the charge laid on or about September 4, 1992 Respondent should be assessed a civil penalty in the amount of FOUR THOUSAND FIVE HUNDRED DOLLARS ($4,500).
  4. Respondent should be directed to remove fill from the regulated wetlands/adjacent areas and navigable waters/adjacent areas (the pilings area, approximately 2,800 square feet) only to the extent of restoring that area to the condition in which it was on or about February 22, 1991 as shown in photograph Exhibits 4 and 5 in evidence at the adjudicatory hearing held in this matter.
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