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Kolodzie, Michael B. - Decision and Order, November 8, 1999

Decision and Order, November 8, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Article 15 of the Environmental Conservation Law,

- by -

MICHAEL B. KOLODZIE
Lenox (T)
Madison County, New York,

Respondent.

Decision and Order

DEC Case No.

R7-19990630-4

WHEREAS:

  1. The New York State Department of Environmental Conservation (DEC or Department) staff has moved for an order without hearing pursuant to § 622.12 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR) before Administrative Law Judge (ALJ) Helene G. Goldberger.
  2. The attached report and recommended rulings by ALJ Goldberger are adopted as my decision in this matter concerning a violation of Article 15 of the Environmental Conservation Law (ECL) based upon respondent's construction of a rock wall below the mean high waters of Oneida Lake without a protection of waters permit, subject to my comments below.
  3. As stated in the report, due to the respondent's failure to present any material facts in response to staff's motion, there are no issues of triable fact relating to the respondent's liability for constructing the rock wall without a permit.
  4. The statute provides for a maximum civil penalty of $5,000 for violations of ECL Article 15. ECL § 71-1107(1). The ALJ modified the Staff's requested penalty by reducing it from $5,000 payable to $2,500 payable with the remaining amount suspended upon timely and adequate site remediation. The ALJ reasoned such monetary penalty reduction was warranted because Staff did not present evidence regarding the long-term environmental damage caused by Respondent's activity. I agree that the record does not state explicitly the long-term environmental damage caused by the Respondent's filling an area below the mean high waters in violation of ECL § 15-0505. However, as the ALJ Ruling makes clear, Respondent undertook his activity without seeking Department review of his proposed project and that the violations are not mere 'technical' or 'paperwork' violations. See, Civil Penalty Policy, 1990, p.8. Such activity undercuts the Department's regulatory scheme to regulate the filling of navigable waters. Moreover, there is every indication that the Department would not approve the project completed by Respondent because of its environmental impacts. The statutory prohibition of placing fill below the mean high water unless certain requirements are met empowers the Department to protect natural resources and navigable waters. Respondent violated the law and disregarded the Staff's advice. Accordingly, I find the Staffs' requested $5,000 payable penalty appropriate.

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

  1. Respondent Michael B. Kolodzie is found to have violated ECL § 15-0505 for placing fill below the mean high water level in Oneida Lake without a permit.
  2. Respondent is liable for a penalty of $5,000.00 (five thousand dollars) which is to be paid to the Department within thirty (30) days of the date of this order.
  3. Respondent must remove the rock fill from below the mean high water mark down to the existing lake bed's grade within sixty days of the date of this order.
  4. Respondent must either remove the rocks to a point above the mean high water mark or randomly distribute the rocks over the lake bed from where they were taken.
  5. The provisions, terms, and conditions of this order and the attached ruling shall bind the respondent, his agents, servants, employees, successors, and assigns and all persons, firms, and corporations acting for or on behalf of the respondent.
  6. All communications between the respondent and the Department in this matter shall be made to the Department's Region 7 Director, 615 Erie Boulevard West, Syracuse, New York 13204-2400.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: John P. Cahill, Commissioner

Dated: Albany, New York
November 8, 1999

TO: Michael B. Kolodzie
9114 Kawana Bay
Canastota, NY 12032

Jeffrey D. Brown,
Regional Attorney
Region 7 - NYSDEC
615 Erie Boulevard West
Syracuse, NY 13204-2400

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Article 15 of the Environmental Conservation Law, by

MICHAEL B. KOLODZIE
Lenox (T)
Madison County, New York,

Respondent.

Administrative Law Judge's Rulings on
Staff's Motion for Order Without Hearing

DEC Case No.

R7-19990630-4

Summary of Ruling

The Department staff's motion for an order without hearing is granted and the relief requested by staff is granted subject to the modifications described below.

Proceedings

The Department staff commenced this proceeding against the respondent Michael B. Kolodzie by service of a notice of motion for order without hearing, supporting affidavits, proposed order, and memorandum of law by certified mail on August 26, 1999. Respondent received these papers on September 2, 1999. Staff alleges that respondent violated Environmental Conservation Law (ECL) § 15-0505 by placing rocks below the mean high water elevation in Oneida Lake without a permit. For relief, staff requests that respondent pay a civil penalty of five thousand dollars ($5000.00) and remove the rocks from below mean high water down to the existing lake bed's grade. Prior to staff's commencement of this proceeding, it attempted to settle this matter with the respondent but was not successful.

In his responding papers that were received by this office on September 15, 1999, Mr. Kolodzie does not deny that he has placed rocks below the mean high water level. Instead, he defends his position by arguing that the work performed by his neighbor, Henry Fengler, pursuant to an Article 15 permit, forced him to take these actions. Mr. Kolodzie has submitted a number of pieces of correspondence relating to a complaint he had in 1995 regarding his neighbor's permitted work that involved the placement of gabion baskets in certain portions of his shoreline property. Apparently, Mr. Fengler had placed some of these wire baskets westward of his property line and accordingly was directed by Department staff to remove them. Without admitting the relevancy of these claims, in its reply of September 22, 1999, staff noted that it required Mr. Fengler to remove these baskets and he did so. However, the respondent was not satisfied with this outcome.

Findings of Fact

Michael B. and Margaret M. Kolodzie own property on Oneida Lake, located in the Town of Lenox, Madison County, New York. Pursuant to a complaint brought by Michael Fengler, Department of Environmental Conservation (DEC or Department) Region 7 biologist Lawrence W. Gumaer visited the Kolodzie's site on August 7, 1998. Biologist Gumaer found that respondent Kolodzie had built a wall composed of rocks retrieved from the lake bed approximately one-half foot below the mean high water level of 372.5 feet, as determined by Barge Canal Datum (BCD) of the New York State Canal Corporation. Mr. Gumaer determined that the lake elevation of August 8, 1998 was 370.92 feet BCD. The top of respondent's rock wall extended to an elevation of approximately 371.9 feet, approximately one-half foot below the Department's jurisdictional mean high water for Oneida Lake.

On October 12, 1998 and again on February 20, 1999, representatives of the Department's Division of Law Enforcement also visited the site and confirmed that fill had been placed along respondent's eastern property line. The respondent has never made an application for a permit for this work and does not possess a permit issued by the Department pursuant to Article 15 of the ECL.

In 1994, respondent's neighbor, Henry Fengler, made application to the Department to place a gabion wall in certain sections of the shoreline to prevent erosion. The Department staff issued a permit to Mr. Fengler dated December 19, 1994. In carrying out this work, Mr. Fengler placed some of the gabion baskets westward of the area that was designated in the permit and accordingly, due to the complaints of the respondent, staff required removal of this material. Mr. Fengler complied but Mr. Kolodzie was not satisfied. The respondent claims that Mr. Fengler's excavation changed the water level adjacent to Mr. Kolodzie's property. Because the Department staff considered the property disputes of these two neighbors to be of a private nature, it did not involve itself in this matter.

Apparently, due to his dissatisfaction with the outcome of the above mentioned dispute, Mr. Kolodzie took it upon himself to address this matter by constructing the rock wall. Mr. Kolodzie performed this work without a permit. The wall extends north from the eastern portion of respondent's shoreline and eastward of the Kolodzie seasonal dock. The water that now lies between the rock wall and the shoreline does not receive circulation, resulting in a stagnant situation with abundant algae growth.

Discussion

Pursuant to § 622.12(a) of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR), staff has supported its motion for an order without hearing with three factual affidavits as well as certain documentary evidence depicting the alleged violation. The respondent, pro se, has answered the motion without any affidavits instead submitting a letter dated September 10, 1999, a list of exhibits, 3 "narrative" responses to staff's affidavits, and a number of copies of documents that relate primarily to the permit that was issued to the neighbor Mr. Henry Fengler. The respondent has "failed to establish the existence of any material issue of fact which would require a hearing." Edgar v. Jorling, 225 AD2d 770 (2d Dep't 1996); 6 NYCRR § 622.12(c). The submissions of respondent relate primarily to the issuance of a permit to another individual. While Mr. Kolodzie attempts to make the case that he placed the rocks consistent with this permit, the Fengler permit was not issued to the respondent. To the extent that he believes that work was necessary to address any situation that existed on his property either related to the Fengler work or not, he was obligated to apply to the Department for his own permit. Therefore, the information he submitted in his defense is not relevant and does not answer the motion of staff with evidence that is competent to defeat the motion.

Mr. Kolodzie also argues that the rocks came from the lake bed. There is no dispute on this fact; however, the statute does not exempt materials that may come from a lake bed from the requirements of ECL § 15-0505. And, regarding respondent's allegations that staff biologist Gumaer directed him to place the rocks as he did, there is insufficient evidence of this claim. In any event, the State cannot be estopped from carrying out its laws based upon the erroneous actions of an employee. See, Parkview Associates v. City of New York, 71 NY 2d 274 (1988). (Illegal permit issued to owner/builder who constructed building 12 stories higher than allowed by local ordinance. Court of Appeals agreed with City that it was not estopped from requiring owner to rectify violation despite issuance of faulty permit). And, in this case, no permit was issued to Mr. Kolodzie and therefore, if any informal remarks were made by staff to him, there was still no basis for him to proceed to perform any work without the required Article 15 permit.

The Department's 1990 Civil Penalty Policy provides a number of factors to consider when assessing a penalty: the gravity of the violation in terms of environmental harm, the economic benefit to the violator, the relevance of the violation to the regulatory scheme, culpability, cooperation, violation history and ability to pay. The purpose of the policy is to encourage compliance and deter violations of the ECL.

Section 71-1107 of the ECL provides for a civil penalty of up to five thousand dollars for each violation of ECL § 15-0505. Staff is requesting this amount as well as removal of the rocks. While five thousand dollars is the maximum penalty allowed by law, the respondent was knowledgeable regarding the permit requirement based upon his experiences with his neighbor's permit, yet he decided to do the work nonetheless without a permit. The staff has disclosed that it has attempted to settle this matter with the respondent over a course of months; however, the respondent has elected not to do so, resulting in the commencement of these proceedings. And, while there is no evidence that respondent obtained a significant economic benefit through his conduct, the failure to apply for and obtain a permit prior to performing this work is not considered a "mere 'technical' or 'paper work violation" especially where here there is every indication the permit would not be granted. See, DEC 1990 Civil Penalty Policy, p. 8, attached hereto. Rather, the permitting system is critical to the Department's ability to monitor work that is proposed in waters of the State in order to prevent environmental degradation.

Apparently, without too much impact on the lake, the respondent can undo the damage that he has caused in the water. The staff has not presented any proof of any long-term damage caused by the rock wall. Thus, I find that while respondent's actions are serious, the maximum penalty is not required provided that he complies with the staff's requirements to remove the rock wall within the time period allowed. Accordingly, I recommend that the Commissioner assess a penalty of five thousand dollars ($5000.00) with twenty-five hundred ($2500.00) suspended pending Mr. Kolodzie's compliance with the measures set forth in the order that are required to remedy this situation. In particular, I recommend that staff be granted the injunctive relief requested requiring: (1) respondent to remove the rock fill from below the mean high water mark down to the existing lake bed's grade within sixty days of the date of the Commissioner's order and (2) to remove the rocks to a point above the mean high water mark or randomly distribute them over the lake bed from where they were taken. Respondent's failure to comply with these requirements within the time period provided without the express written approval of the Region 7 Regional Director should be considered a violation of the Commissioner's order triggering the respondent's obligation to pay the suspended portion of the penalty.

Conclusion

I recommend that staff's motion for summary order be granted with the requested relief modified as noted above.

_____________/s/_____________
Helene G. Goldberger
Administrative Law Judge

Dated: Albany, New York
October 26, 1999

TO: Michael B. Kolodzie
9114 Kawana Bay
Canastota, NY 12032

Jeffrey D. Brown,
Regional Attorney
Region 7 - NYSDEC
615 Erie Boulevard West
Syracuse, NY 13204-2400

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