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Pelbamar Corporation and Thomas Ward - Order, November 30, 1995

Order, November 30, 1995

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 and Parts 608 and 771 of Title 6
of the Official Compilation of Codes, Rules and Regulations of the State of New York, by

PELBAMAR CORPORATION and THOMAS E. WARD,

Respondent.

ORDER

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated March 4, 1994 and an Amended Complaint dated April 4, 1994, issued against Respondents, Pelbamar Corporation and Thomas E. Ward, an administrative enforcement hearing was held before Administrative Law Judge Helene G. Goldberger on September 14, 1995. The record was closed on November 9, 1995.
  2. Upon a review of the attached Hearing Report, I accept its Findings of Fact, Conclusions and Recommendations.

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

  1. The Respondents are assessed a civil penalty in the amount of FIVE THOUSAND DOLLARS ($5,000), payable within thirty (30) days of the date of this Order.
  2. Within thirty (30) days of the date of service of this Order, Department staff and Respondents will conduct a site visit to assess the appropriate manner, consistent with protection of the environment, to remove all the fill including the concrete cylinders that Respondents placed in the adjacent area and navigable waters in 1988 as shown on the Respondents' survey. Within thirty (30) days after the site visit, in the event that Department Staff determines that this work cannot be accomplished without harm to the environment, Respondents shall submit an approvable plan, consistent with Staff guidance, for the remediation of an alternative and comparable site. In the event that Staff determines that the work can be accomplished without harm to the environment, within thirty (30) days after the site visit, Respondents shall submit an approvable plan that provides for the removal of the above-mentioned fill and concrete cylinders, erosion control measures to prevent fill material from entering the waterway, a description of the equipment to be used and identification of the planned disposal site(s) for removed fill material as well as an acceptable manner of shoring up the bulkhead, if required. In either case, Respondents shall complete the work, consistent with the DEC-approved plan, within one hundred and eighty (180) days from approval of the remediation plan, provided that weather conditions permit.
  3. All communications between Respondents and DEC concerning this Order shall be made to the Department's Region 2 Director, One Hunter's Point Plaza, 47-40 21st Street, Long Island City, New York 11101.
  4. The provisions, terms and conditions of this Order shall bind the Respondents, their officers, directors, agents, servants, employees, successors and assigns, and all persons, firms, and corporations acting for or on behalf of the Respondents.

State of New York
Department of Environmental Conservation
_____________/s/_____________
Michael D. Zagata, Commissioner

DATED: Albany, New York
November 30, 1995

TO: Thomas E. Ward
(CERTIFIED MAIL)
351 Fordham Place
Bronx, New York 10464

Pelbamar Corporation
(CERTIFIED MAIL)
1490 Outlook Avenue
Bronx, New York 10465

John LaGumina, Esq.
(CERTIFIED MAIL)
Hitsman, Hoffman & O'Reilly
570 Taxter Road
Elmsford, New York 10523

Steven Goverman, Esq.
(FIRST CLASS MAIL)
Assistant Regional Attorney
Region 2, NYSDEC
47-40 21st Street
Long Island City, New York 11101

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 and Parts 608 and 771 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York, by

PELBAMAR CORPORATION and THOMAS E. WARD

DEC No. R2-2318-89-02

Hearing Report- by -

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

PROCEEDINGS

Pursuant to a Notice of Hearing and Complaint, dated March 4, 1994 and an Amended Complaint dated April 4, 1994, issued against Pelbamar Corporation and Thomas E. Ward (collectively, "Pelbamar" or "Respondents" herein), an administrative enforcement hearing was held before me on September 14, 1995 at the Region 2 office of the New York State Department of Environmental Conservation ("the Department" or "DEC"), 47-40 21st Street, Long Island City, New York.

Assistant Regional Attorney Steven Goverman with offices at the Long Island City Region 2 headquarters represented the Department. John LaGumina, Esq. of Hitsman, Hoffman & O'Reilly with offices at 470 Taxter Road, Elmsford, New York represented the Respondents.

The complaint and amended complaint alleged violations of Environmental Conservation Law ("ECL") Articles 15 and 25, Titles 5 (Protection of Water) and 4 (Tidal Wetlands - Regulated Activities), respectively, as well as Parts 608 and 661 of Title 6 of the New York Compilation of Codes, Rules and Regulations ("6 NYCRR").

After testimony and receipt of evidence concluded on September 15, 1995, the parties requested additional time to submit post-hearing briefs. During the hearing, the Staff and the Respondents disagreed on the interpretation of so-called emergency regulations contained in former 6 NYCRR 661.32 and 621.13 and their relevance to the respondents' affirmative defenses. The parties agreed to address this issue in post-hearing briefs. I set a briefing schedule that required the parties to submit simultaneous briefs by no later than two weeks from receipt of the transcript with the option of submitting replies within one week of the original submissions. This office received the Department Staff's brief on November 1, 1995 and the Respondents' brief on October 31, 1995. Staff requested and I agreed to allow until November 9, 1995 to submit a reply. While I provided Respondents with the same opportunity, they did not submit a reply.

Department Charges

According to the Department, Thomas E. Ward is president of Pelbamar Corporation located at 1490 Overlook Avenue, Bronx, New York. In Respondents' answer, they deny this allegation however, Mr. Ward testified that he was the president and sole shareholder of the corporation. The Department accuses Ward and Pelbamar Corporation of unlawfully placing fill in an adjacent area of regulated wetlands as well as in navigable waters of the State located in Eastchester Bay. On January 31, 1989, Environmental Conservation Officer Moore observed that Respondents had used approximately fourteen concrete pipes as well as other concrete and construction and demolition debris ("c & d") material to stabilize a structure that had previously served as a bulkhead. The Department claims that these activities were illegal pursuant to ECL 25-0401 (Tidal Wetlands) and 15-0505 (Protection of Waters) and their implementing regulations contained in 6 NYCRR 661 and 608, respectively. ECL 25-0401 and Part 661 prohibit the alteration of any regulated tidal wetland or adjacent area without a permit. ECL 15-0505 and 6 NYCRR 608.4 prohibit the excavation or the placement of fill in the navigable waters of the State without a permit issued by DEC.

Relief Requested

In its complaint, the Department Staff request the following relief: a) a penalty of $3,000.00 for the violation of Article 25 and Part 661 pursuant to ECL 71-2503; b) a penalty of $5,000.00 for the violations of Article 15 and Part 608, pursuant to ECL 71-1107; c) remediation of the site by requiring Respondents to remove the pipes and all fill placed seaward of the August 1, 1984 high water line shown on the Respondents' survey dated February 23, 1990 and requiring respondents to restore those portions of the wetlands and adjacent area that were adversely affected by the alleged illegal activity.

Respondents' Position

In their answer, Respondents deny generally the allegations but admit performing certain work at the property to restore a failing and collapsing bulkhead and thereby protect the shoreline and provide an effective flood control barrier. As an affirmative defense, the answer states that the restoration work was required by an unforeseen emergency and has provided an effective flood and storm control barrier. The Respondents also claim as affirmative defenses financial inability to remove the bulkhead and the propriety of a reduction of the requested fines due to the Respondents' reasonable and necessary actions to protect the shore.

During his opening statement at the September 14, 1995 hearing, counsel for the Respondents reiterated their admission that Pelbamar had performed the work identified by the Department Staff. However, he contended that this work was necessary to protect the failing bulkhead and to stabilize the shoreline and to provide flood protection. Counsel LaGumina stated that the remediation requested by staff would cost $100,000 which his client could not afford. He further argued that the restored bulkhead was ecologically safe and sound and was built with respect for environmental and industry standards. Counsel also argued that the work was in accord with Part 661 because it provided an effective flood and storm control barrier.

In their post-hearing brief, Respondents argue that the Department had failed to show that the unpermitted work had been performed in a protected adjacent area. Respondents confuse the Department Staff's position that the area was incorrectly omitted from the Department's final tidal wetlands map with Staff's testimony that in any event, it was regulated adjacent area. For the first time, in their post-hearing brief, the Respondents claim that Thomas E. Ward is not personally liable for any actions taken by the corporation. Respondents also argue in their brief that their actions were reasonable and necessary and that the requested remediation is excessive in light of the standards set forth in 6 NYCRR 661.2(j) and 661.5(b)(29) for work in adjacent areas and would be an unconstitutional taking of their property.

Witnesses for the Parties

Stephen M. Zahn, a Marine Resources Specialist I with DEC's Bureau of Marine Habitat Protection, testified on behalf of the Department. Thomas E. Ward, the president and sole stockholder of Pelbamar Corporation and Sheldon Reich, P.E. of Sheldon L. Reich, P.C., an engineering and architectural firm located in Staten Island, New York testified on behalf of the respondents.

Exhibits

Between them, the parties offered eighteen exhibits of which all were accepted into evidence. Mr. Zahn testified that Exhibit 9 is an original transparency of the aerial photography performed by the Department in the tidal wetland mapping process. As it is the Department's only such transparency of this area, I agreed to allow the Staff to maintain this document in their offices subject to inspection by the Respondents or to a requirement to produce it for any future record related to these proceedings. However, I also asked the Staff to investigate the possibility of duplicating the transparency in order to provide copies to me and the Respondents, and Staff agreed to do so.

FINDINGS OF FACT

  1. Respondent Thomas E. Ward is the president and sole stockholder of Pelbamar Corporation which is a commercial marina located at 1490 Outlook Avenue, Bronx, New York on the shoreline of Eastchester Bay.
  2. Prior to the enactment of the Tidal Wetlands Act in 1973 and perhaps as long ago as the 1940's, a wooden barge or structure was placed in the waters adjacent to the property which is currently owned by Pelbamar. This structure served as a bulkhead until part of it collapsed in 1988. Prior to 1988, Respondents had not performed any maintenance or repair work on this structure.
  3. In or around March of 1988, the northern exterior wall of this wooden structure fell into the tidal wetland adjacent area and water surrounding it.
  4. In response to this occurrence, Pelbamar cleaned up the debris that had fallen into the waters and surrounding area. In April or May of 1988, based upon information he read in a book entitled Marinas dated 1975, but without the advice of an engineer or Department staff, Mr. Ward purchased precast concrete cylinders and upended these structures in the waters and adjacent area east of the failing bulkhead. Then, Mr. Ward had cement poured into these cylinders. The Respondents intended these structures to form a wall that would hold the concrete fill that was then placed between the cylinders and the bulkhead.
  5. As part of this work, Pelbamar also placed concrete rubble and fresh cement between the vertical walls of the wooden structure.
  6. Although it was the northern wall that collapsed, this project resulted in the placement of approximately 3600 square feet of cement and concrete debris into the southeastern area surrounding the wooden structure. This area had previously been comprised of adjacent tidal wetland and waters of Eastchester Bay as indicated on Respondents' survey and NYSDEC Tidal Wetlands Map 598-522. Prior to the commencement of this work, the Respondents did not apply for and did not obtain permits pursuant to ECL 15-0505 or 25-0401.
  7. The cylinders placed by Pelbamar currently function to retain the fill behind them.
  8. By letter dated June 10, 1988, on advice of an inspecting Environmental Conservation Officer ("ECO"), Respondent Ward wrote to the Department advising the regional office of the work he had done and requesting a "letter of permission."
  9. On or about January 31, 1989, ECO Edward B. Moore served the Respondents with a Notice of Violation indicating that they had caused violations of Articles 15 and 25 of the ECL by reconstructing a bulkhead without the required permits.
  10. As indicated by colored lines drawn by DEC witness Stephen M. Zahn on Pelbamar's survey, Respondents' filling has resulted in moving the high water line seaward from ten (10') to eighty (80') feet.
  11. In 1988, the area filled subsequently by Respondents was adjacent to a regulated tidal wetlands and navigable waters of the State. This area was comprised of littoral zone (permanently under water) as well as a shoal mudflat (intertidal zone). Consistent with similar areas located in Eastchester Bay, prior to filling by the Respondents, this area would have provided wildlife habitat as it was continually inundated. Although the property is not included on the current tidal wetlands map, Staff maintains it should be so included, but in any event, and prior to filling, the area was in the regulated adjacent area as well as part of Eastchester Bay.
  12. In the littoral zone areas of Eastchester Bay, there exists a bottom community of organisms including many shellfish. Shellfish which are harvested from the bay are transported to areas further east for depuration prior to sale. Thus, the area provides a nursery habitat for shellfish. In addition, areas such as this provide recreational values.
  13. Pelbamar's use of the concrete cylinders and the large amount of concrete and cement as fill was not consistent with the Department's general recommendations for restoration of bulkheads because of their intrusiveness into the resource. This work went beyond what was needed to stabilize the existing bulkhead.
  14. Typically, DEC Staff recommends that stabilization structures be placed within eighteen (18) inches of existing structures. In addition, construction and demolition debris is not approved for placement in tidal wetlands areas. The proper stabilization materials would consist of clean, inert substances that would not degrade the surrounding environment.
  15. Proper shoreline stabilization can be expensive and by using the construction and demolition debris materials, and thus, Pelbamar may have avoided costs by using c & d debris in lieu of obtaining a DEC permit and using approved materials. The removal of this new structure of concrete, cement and construction and demolition debris will also be difficult, expensive and may have deleterious effects on the environment.
  16. On an annual basis, Pelbamar takes in a profit of $40,000 -$50,000. Mr. Ward lives above the marina and drives an older vehicle. The Respondents do not have any large outstanding loans.

DISCUSSION

The parties do not dispute the basic facts in this case. The Department charges and Pelbamar has admitted both in its answer and in testimony by both of its witnesses that the Respondents placed approximately 3600 square feet of fill into the adjacent area of a regulated wetland and into the navigable waters of the State. The Respondents also do not dispute that they had not applied for or obtained permits pursuant to Articles 15 and 25 of the ECL prior to doing this work. The disagreement is over whether the Respondents' claim of an emergency relieves them of the responsibility of compliance with the law, payment of fines and remediation.

In the original tidal wetland regulations promulgated by the Department in 1977, 661.32 provided for the exemption from Part 661 of any activity "which is immediately necessary for the protection and preservation of life or property or the protection or preservation of intrinsic resources values. Such emergency activities include, . . . , search and rescue operations, and preventive or remedial activities related to large-scale contamination of streams or other bodies of water, floods, hurricanes and other storms, and public health concerns. Within 10 days of the end of such an emergency involving the undertaking of any activity which otherwise would be treated as a regulated activity . . ., the person chiefly responsible for undertaking such emergency activity shall send a written statement to the regional permit administrator setting forth the pertinent facts regarding such emergency, including an explanation of the life, property or resource values such activity was designed to protect or preserve." At the hearing, it was the Department Staff and not the Respondents that cited this provision. This section was in effect at the time Respondents undertook the activities in question although it was repealed in November 1988, effective January 1, 1989.

However, the Department was able to establish through its cross-examination of Mr. Ward, that in any event, the work was not the result of an emergency and if it was, it was self-created. Mr. Ward took weeks and possibly more time from the day the exterior northern wall of the wooden structure collapsed until he filled the southeasterly area around the barge. In addition, he admitted that he had never done any repair work on the structure and was only hoping that problems would "never happen." This is not a realistic expectation of a forty to fifty-year-old wooden structure that was in water and exposed to severe weather. And on cross-examination by the Department, Mr. Ward revealed that the structure also contained interior walls that apparently had not yet collapsed. Additionally, the activities undertaken by Respondents were not the result of the type of emergency described in the regulation in effect when the events occurred. Finally, although the Respondents wrote to the Department in June of 1988, after a DEC inspector came to the property, this letter was clearly not written within the ten days of the collapse of the wall but rather some months later. Thus, 661.32 is not applicable to these events. At the hearing, counsel for Staff also noted an emergency provision in Part 621 but did not provide a citation. Upon review of the regulations, I note that 621.15(c) [formerly 621.14(c)] provides for the Department to issue general permits to allow work to eliminate damage caused by natural disasters or extraordinary weather without following the full procedural requirements of Part 621. Again, this provision was clearly intended to apply to circumstances similar to those described in 661.32, i.e., immediately necessary for the protection and preservation of life or property, and thus, does not apply here. In any event, the Respondents did not present any evidence or argue that they made any such application to the Department to undertake the actions completed by them.

In their post-hearing brief, Respondents cite to a similar emergency provision provided in ECL 15-0505(6) which provides that standard permit requirements are not applicable to emergency work "which is immediately necessary to protect the health, safety and well-being of any person . . . or to prevent damage to personal or real property, provided that the department is given written notification by registered mail or telegraph within forty-eight hours after the commencement of the work and within forty-eight hours following the completion of the work." This law also limits the work to that which would cause the least damage to the environment. For the reasons set forth above, Pelbamar does not meet the requirements for this exemption as there was no proof of an emergency and no notice pursuant to this section was given the Department.

Furthermore, the testimony of DEC witness Zahn combined with the admissions of Engineer Reich on cross-examination reveal that the work Mr. Ward did went well beyond what was required to merely shore up the failing structure. While Mr. Ward claimed that he had to place more fill in order to support a crane that was to be used in this stabilization project, he also admitted that he just thought a straight line would "look better." As a result, the Respondents accomplished not only the stabilization of the failing bulkhead but also were able to expand their property.

In Respondents' post-hearing brief it is argued without any support in the record that the adjacent area provided little environmental function. Respondents also cite to the regulations standards for permit issuance and variances. However, in light of the fact that Pelbamar did not apply for either a permit or variance, these provisions do not support their claims that the work was necessary or compatible. The purpose of the permitting requirement is so that Staff can assess the specific effects of a project on the wetland, adjacent area and navigable waters and tailor the work accordingly. By bypassing the application process, the Respondents did not have the benefit of this analysis and as a result, caused unnecessary damage to the resource. And, as pointed out by Staff in their reply brief, had Pelbamar applied to the Department for a permit, the Staff would have been able to identify the area in question as tidal wetland and amend the map accordingly. See, Thompson v. NYSDEC, 132 AD2d 665 (2d Dep't 1987).

In the Respondents' case, Mr. LaGumina and Mr. Ward made remarks about how the Department's proposed remediation requested in the complaint would irreparably harm Pelbamar. However, Respondents made no attempt to support this claim in the pleadings, written evidence or in testimony although this was part of their affirmative defenses. Thus, I can give this affirmative defense little if any weight. Based upon responses I elicited on this subject from Mr. Ward, it appears that while Pelbamar may not be extremely profitable, it is an on-going business. As to Respondents' claim that the required remediation would result in a "taking", this constitutional issue is not a subject that can be addressed in this forum as that issue is reserved for the courts. In any event, as Respondents did not apply for a permit before performing the work and did not submit proof of the financial burden of remediation, the claim that all economic use of their property has been denied appears to be, at best, premature. See, Spears v. Berle, 48 NY2d 254 (1979).

As to Respondents' claim that the Staff did not demonstrate the Department's jurisdiction over the affected area, even without making any determination regarding whether the area should be on the tidal wetlands map, the Staff did prove that the area was part of a regulated adjacent area through testimony and documentary evidence and thus, subject to the permitting requirements of ECL Article 25. See, 6 NYCRR 661.4(b)(1)(i). In addition, without any contrary evidence provided by the Respondents, the Staff demonstrated with an examination of the inventory map, the transparency and an aerial photograph produced in 1988 that the fill area constituted former open water. Mr. Zahn testified that this area was a littoral zone prior to the Respondents' activities. This evidence was further supported by the Respondents' own survey which shows the 1984 mean high water line landward of the present fill.

For the first time, in their post-hearing brief, Respondents claim that Mr. Ward is not personally liable for the violations. I cannot concur. Because he testified that he was responsible for the marina, made the determinations regarding the work in question and performed the unpermitted work, he is individually liable for the violations regardless of the corporate structure of Pelbamar. See, Jackson's Marina, Inc. v. Jorling, 193 AD2d 863, 866 (3d Dep't 1993); In the Matter of Sheldon Galfunt and Hudson Chromium Co. Inc., Commissioner's Decision, (May 5, 1993). Pursuant to this precedent, it would be sufficient to find that Mr. Ward was directly responsible for operation and had managerial authority to prevent the violations. Here, clearly, his actions went much further and there can be no doubt as to his personal liability.

Pelbamar's third and final affirmative defense is that because the intent of the Respondents was to restore the failing bulkhead and protect the shoreline, the fines imposed should be reduced. The Department has proved that the Respondents filled in an adjacent area and navigable waters of the State without the required permits under ECL Articles 25 and 15 respectively. In its request for penalties, the staff has requested a civil penalty of $8,000.00, the maximum allowable penalty for a single violation of each statute in effect when the violations occurred. In 1989, the Legislature increased the penalties for tidal wetlands violations from $3,000 per violation to $10,000.00. Similarly, since 1989, Article 15 violators are subject to $10,000 penalties per violation while previously $5,000.00 was the maximum. Staff points out in its brief that multiple penalties have been allowed by the courts even where the violations concerned a single project but has recommended a reduce penalty based upon the Respondents' unsupported claims of hardship, the substantial cost of remediation and their cooperation in communicating the facts underlying the violation. Accordingly, the Staff has voluntarily mitigated the penalty assessment even though Respondents' claims are unsupported.

The Department witness spoke about the loss of marine resources caused by Respondents' actions. However, he had never visited the site and was basing his testimony on his knowledge, generally, of Eastchester Bay. Based upon the testimony of Respondent Ward, I believe that his motivation for the work was primarily a desire to stabilize the existing structure. It is also clear, however, that he took advantage of this opportunity to add to his land. In any event, in 1988, after inspection by an ECO, Pelbamar did contact the Department to seek guidance. This request apparently went unanswered. There was no evidence of a history of violations by the Respondents and there was apparently no further work done in the regulated areas once the Department issued the Notice of Violation.

The Department's witness recommended remediation without specific knowledge of the site. Mr. Reich testified that the removal of the fill might cause more damage than benefit to the environment. It is also apparent that the removal of this fill will be at significant cost to the Respondents although Pelbamar has benefitted economically from 1988 to the present by choosing a less costly manner of stabilization and increasing its volume of land. The Commissioner's 1990 Tidal Wetlands Enforcement Guidance Memorandum (2/8/90 at p. 8) provides that unpermitted projects which if reviewed in the usual permit application process would have required modification to receive a permit are a serious concern due to both procedural noncompliance and the greater likelihood of adverse environmental impacts. (See also, Civil Penalty Policy, 6/20/90, p. 8). Thus, the policy concludes, these violations warrant maximum sanctions and restoration of affected wetland values. This policy also supports Staff's position that the remediation should not be limited based upon regulatory standards and presumptions applicable to tidal wetland adjacent areas because the proper mapping of the site as a littoral zone would have occurred if Pelbamar had applied for a permit.

Although I am sympathetic to what appears, in part, to be Respondents' earnest intent to correct a failing bulkhead, the work completed in their engineer's own words was "overkill" and resulted in the destruction of viable environmental resources. Clearly, had Respondents used it, the permit process in this instance would have resulted in a more environmentally compatible project.

The Civil Penalty Policy of 1990 provides for mitigation of penalties based upon the culpability of the violator, cooperation, history of non-compliance, ability to pay and unique factors. (6/20/90 at pp. 9-11). As stated above with respect to culpability, I found Mr. Ward to be credible with respect to his intent to stabilize the bulkhead although I do not find his response to be based on an emergency. In addition, Pelbamar went too far in the unpermitted project resulting in destruction of 3600 square feet of tidal wetlands adjacent area and loss of open water. The Respondents have not continued to violate the law since their receipt of the Notice of Violation and they did contact the Department soon after an inspector came to the property in 1988. There is no history of non-compliance but neither is there a basis in the record to find that Pelbamar is incapable of paying a fine as asserted in their affirmative defense.

Based upon these circumstances, I find that the payable penalty should not be the maximum amount for single violations recommended by Staff ($8,000) but instead should be reduced to a payable penalty of $5,000.00. However, the Respondents must remediate and restore the site in accordance with a plan approved by Department Staff after a site visit by Staff to ensure that such work will not result in degradation of the environment.

CONCLUSIONS

The Respondents, Thomas E. Ward and Pelbamar Corporation are jointly and severally liable for violations of Environmental Conservation Law 25-0401 and 15-0505 and 6 NYCRR 661 and 608.4.

RECOMMENDATIONS

For the unpermitted filling of tidal wetland adjacent area and navigable waters of the State, a penalty of $5,000.00 should be assessed. In addition, the Department's request for removal of all the fill including the concrete cylinders that Respondents placed in the adjacent area and navigable waters in 1988 as shown on Exhibit 10, the Respondents' survey, should be granted as well. The Commissioner should grant the Department's request that the Respondents present and implement an approvable plan for remediation and restoration of the site that includes removal of the fill, erosion control measures to prevent fill material from entering the waterway, a description of the equipment to be used and identification of the planned disposal site(s) for removed fill material and an acceptable manner of shoring up the bulkhead, if required. I agree with the Staff's recommendation that the Respondents should not be required to remove concrete fill poured between barge walls. The Staff's approval of such plan should be based on a site visit to ensure that such work is compatible with the environment. Respondents should be required to complete the remediation work within 180 days from DEC approval of the remediation plan provided that weather conditions permit.

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