Tubridy, Michael - Order, October 12, 2000
Order, October 12, 2000
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of Alleged Violations of Article 15 and Article 25 of the 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 ("6 NYCRR") by
DEC Case No. R2-0428-99-03
- On September 22, 1999, the Department of Environmental Conservation ("Department") Region 2 Staff moved for an order without hearing against Michael Tubridy (the "Respondent") pursuant to 6 NYCRR §622.12(a), on the basis that no material issues of fact existed that required a hearing. The motion was granted with regard to two causes of action but denied with regard to one cause of action and an administrative enforcement hearing was scheduled concerning the disputed cause of action. The hearing was held before Susan J. DuBois, Administrative Law Judge ("ALJ"), on March 7 and April 14, 2000 in Long Island City, New York. The Department's Region 2 Staff appeared by Udo Drescher, Esq., Assistant Regional Attorney. The Respondent both appeared by James E. Mulvaney, Esq., Rockaway, New York. The present Order constitutes the Department's final decision regarding all three causes of action.
- Upon review of ALJ DuBois's hearing report, a copy of which is attached, I concur with its findings of fact, conclusions and recommendations.
- The record in this matter establishes that the Respondent violated ECL Articles 25 and 15 and the terms of his tidal wetlands permit by failing to provide poof of filing of a required deed covenant, storing equipment in the wetland, and failing to maintain erosion controls to prevent a fill pile from eroding into the water. While the environmental impacts were minor, the Respondent's continued failure to comply with the conditions of the permit and his past violation of the Tidal Wetlands Act at a different site support imposition of a substantial penalty.
NOW THEREFORE, having considered this matter and being duly advised, it is ORDERED that:
- The Respondent is assessed a civil penalty in the amount of $11,000.00 (Eleven thousand dollars), of which $5,000.00 (Five thousand dollars) shall be due and payable to the Department within sixty (60) days from the date of service of this Order upon the Respondent. The remaining $6,000.00 (Six thousand dollars) is suspended on the condition that the Respondent remove the fill pile to an upland location or install and maintain erosion controls (silt fences and hay bales) to prevent the fill from eroding into the wetland at the site until such time as the Respondent has stabilized the shoreline in accordance with the permit.
- Within thirty (30) days after service of a conformed copy of this Order upon the Respondent, the Respondent must record the deed covenant as required in DEC Permit No. 2-6308-00085/00001 and must provide proof of this filing to the Regional Permit Administrator at the Department's Region 2 Office, 47-40 21st Street, Long Island City, New York, 11101.
- All communications between the Respondent and the Department concerning this Order, except for the document in Paragraph II above, shall be made to the Department's Region 2 Director, NYS Department of Environmental Conservation Region 2, 47-40 21st Street, Long Island City, New York 11101.
- The provisions, terms and conditions of this Order 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.
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
JOHN P. CAHILL,
Dated: Albany, New York
October 12, 2000
163 Beach 121st Street
Rockaway, New York 11694
James E. Mulvaney, Esq.
107-10 Shorefront Parkway
Rockaway, New York 11694
Udo Drescher, Esq.
Assistant Regional Attorney
NYSDEC Region 2
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 Alleged Violations of Articles 15 and 25 of the Environmental Conservation Law and Parts 608 and 661 of Title 6 of the Official Compilation of Codes, Rules and regulations of the State of New York
163 Beach 121st Street
Rockaway, New York, 11694
Case No. R2-0428-99-03
Susan J. DuBois
Administrative Law Judge
This hearing began with a motion for an order without hearing against Michael Tubridy (the "Respondent"), 163 Beach 121st Street, Rockaway, New York 11694, for violations which allegedly occurred at the Respondent's property located at 933 Shad Creek Road, Broad Channel, Queens County, New York (the "Site"). The motion was made by the Department of Environmental Conservation ("Department") Staff, of the Department's Region 2 Office, on September 22, 1999.
The motion alleged that the Respondent is in violation of Environmental Conservation Law ("ECL") Articles 15 (Protection of Water) and 25 (Tidal Wetlands), Parts 608 (Use and Protection of Waters) and 661 (Tidal Wetlands) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), and DEC permit number 2-6308-00085/00001. The motion stated that no material issue of fact existed that required a hearing. The motion sought an order from the Commissioner directing the Respondent to install erosion controls at the Site, maintain the erosion controls, and pay a civil penalty.
The motion was made pursuant to 6 NYCRR §622.12(a). The motion was accompanied by an affidavit by Harold Dickey, Environmental Analyst, an affidavit by Jodi McDonald, Marine Resources Specialist, and an affirmation by Udo M. Drescher, Esq., Assistant Regional Attorney.
On September 30, 1999, the Respondent filed an affidavit in opposition to the motion. The Department Staff replied to this on October 22, 1999. The Respondent submitted a sur-reply on November 15, 1999.
Following receipt of the sur-reply, the Department Staff wrote to the Administrative Law Judge on November 17, 1999 and stated that it appeared that the Respondent might be interested in pursuing settlement negotiations. The Department Staff requested that a ruling not be made until either party notified the ALJ that negotiations had failed. On November 23 and December 10, 1999, respectively, the Department Staff and the Respondent notified the ALJ that negotiations had failed.
The Department Staff was represented by Udo M. Drescher, Esq., Assistant Regional Attorney. The Respondent represented himself. The Administrative Law Judge assigned to this matter was Susan J. DuBois.
The hearing began on March 7, 2000 and concluded on April 14, 2000. The first hearing session took place at the Department's Region 2 Office in Long Island City, New York and the second took place at the NYS Department of Transportation Office located in the same building as the DEC Region 2 Office. The Department Staff called as witnesses Jodi McDonald, Marine Biologist Trainee 2, and Dawn McReynolds, Conservation Biologist 2, both of the DEC Region 2 office. The Respondent Michael Tubridy testified in his own behalf. He also submitted an affidavit by Richard Raymond of Coastal Consultants. The Department Staff was offered an opportunity to cross-examine Mr. Raymond regarding his affidavit at an additional session of the hearing but declined doing so. The hearing record closed on June 26, 2000, upon receipt of briefs from both parties.
Positions of the Parties
The Department Staff alleged that the Respondent failed to install erosion controls as required in his Tidal Wetlands permit and that this resulted in fill eroding into a tidal wetland and Jamaica Bay, in violation of ECL Articles 15 and 25. The Department Staff also alleged that the Respondent violated the conditions of his permit by storing machinery within the tidal wetland and by failing to submit proof of filing a deed covenant. The alleged lack of erosion controls and the stored equipment were observed by a member of the Department Staff on January 20, 1999.
The Department Staff sought an order directing the Respondent to install erosion controls, consisting of haybales and silt fencing or an equally effective method, and to maintain the erosion controls until he has stabilized the shoreline in accordance with the permit.
The Department Staff also sought a penalty of $10,000 for failing to install erosion controls and $500 for each of the other two alleged violations, for a total civil penalty of $11,000. The Department Staff cited a prior Order on Consent against the Respondent as a reason supporting the penalty amount.
The Respondent opposed issuance of an order without hearing. He stated that an Environmental Conservation Officer had been to the site on the day that work started and had allowed the Respondent to continue placing stone and fill along the existing bulkhead. He stated that no fill was placed in the area to be bulkheaded and that the fill consisted of beach sand and pebbles which would form a barrier and prevent erosion of street contaminants into the bay. The Respondent submitted a letter dated February 4, 1999 which stated that he had placed sediment erosion controls at the site.
The Respondent stated that at the time when he contacted the Department in response to a notice of violation, the construction equipment was located 30 feet upland from the area to be bulkheaded, but he did not deny that the equipment had been stored in the wetland at the time of the alleged violation. The Respondent's papers did not deny that he had failed to submit proof of the deed covenant.
Ruling on Motion for Order Without Hearing
On January 5, 2000, I granted the motion with respect to the second cause of action (storage of construction machinery within the tidal wetland) and the third cause of action (failure to submit notice of filing of deed), but denied the motion for summary order with regard to the first cause of action (failure to install erosion controls). The ruling also identified certain facts that were not in dispute, which are restated below as Findings 1 through 4. The hearing was scheduled regarding the first cause of action.
The procedures and standards regarding motions for orders without hearings, in Department of Environmental Conservation administrative enforcement cases, are contained in 6 NYCRR Section 622.12.
Amendment of Complaint
At the hearing on March 7, 2000, the Department Staff moved to amend the complaint to include alleged violations at the times of site visits that had occurred after the motion for order without hearing. The motion to amend the complaint was granted on April 11, 2000.
FINDINGS OF FACT
1) The site of the alleged violations is located at 933 Shad Creek Road, also known as 98th Street, Broad Channel, New York (Queens County).
2) On February 20, 1997, the Respondent received permit number 2-6308-00085/00001 from the Department of Environmental Conservation for the construction of a house, deck, driveway and bulkhead on the Site.
3) Special Condition No. 15 of the permit requires the Respondent to record within 90 days of the issuance of the permit a notice covenant to the deed for the site, which would identify, using language specified in the permit, that regulated tidal wetlands are located at the site. A proof that the covenant had been record was required to be sent to the Department's Region 2 Office. Such proof was never provided by the Respondent.
4) Special Condition number 7 of the permit requires that the storage of construction equipment and materials shall be confined to within the project work site or upland areas greater than 30 linear feet from the tidal wetland boundary. On January 20, 1999, Marine Resources Specialist Jodi McDonald, of the Department's Region 2 Office, observed a "Bobcat" or similar piece of bulldozer machinery on the site within the tidal wetland.
- The site of the alleged violations is a 100 foot by 110 foot parcel. The side of the site which borders on the water is the northwestern boundary of the site. On this side, there are the remains of an old bulkhead with a riprap wall landward of it, plus a section of unbulkheaded shoreline. The mean high water line curves landward on the site. A portion of the 100 by 110 foot parcel is below the mean high water line. On the parcel immediately north of the site, there is a house with a dock (see Appendix A). The Respondent's parcel includes tidal wetland (designated as littoral zone on the Department's tidal wetlands inventory map) and adjacent area of tidal wetland.
- The permit allows for construction of a bulkhead near the mean high water line and placement of fill behind the bulkhead. The permit requires that the bulkhead construction must be complete prior to the placement of fill behind it (Special Condition 4) and that: "If construction of the house occurs prior to bulkhead construction, appropriate erosion controls consisting of haybales and staked silt fencing must be installed no more than 5 feet seaward of the proposed dwelling footprint." (Special Condition 3).
- In early 1999, Environmental Conservation Officer ("ECO") Armstrong visited the site and spoke with the Respondent, who showed ECO Armstrong the permit. As of the time of this visit, the Respondent had brought fill to the site to grade the portion of the site which is near the riprap wall and the old bulkhead. ECO Armstrong allowed the work to continue, but also asked Ms. McDonald to inspect the site with regard to whether the work was in compliance with the permit.
- During Ms. McDonald's January 20, 1999 visit to the site, she observed a pile of fill material on the site with no erosion controls. Ms. McDonald issued a notice of violation to the Respondent on January 20, 1999. Subsequently, on an unidentified date, a member of the Department's Region 2 Staff told the Respondent to place silt screening and haybales around the seaward edge of the construction area.
- On April 30, 1999, Ms McDonald visited the site again, The fill pile was still present and no erosion controls were in place. Ms. McDonald visited the site on August 10, 1999 and observed that the fill pile had spread out somewhat and that no erosion controls were present. Tidal waters had come in contact with the toe of the fill pile, as indicated by the presence of wrack (dead marine vegetation) that had washed up and accumulated at that location. Some material from the fill pile had washed into the water. Ms. McDonald visited the site again on a date in November, 1999 and again observed that no erosion controls were installed, although a pile of silt fence material was present on the site.
- On February 24, 2000, Ms. McDonald and Tammy Greco, another DEC Region 2 employee, visited the site and found that no erosion controls were installed. Some erosion control fence material was piled up at the site but was not erected as a functioning fence.
- The Respondent testified that he had installed silt fence on the site in early 1999, but that it had been torn down by vandals. He testified that he had re-installed it twice, once after being notified by the Department Staff in April, 1999 that no erosion controls were in place and once after receiving the motion for order without hearing. The silt screen had been torn down again, presumably by vandals, after both occasions on which he had re-installed it. The Respondent goes to the site approximately two times a month, and on most of these occasions the erosion controls have not been in place. He did not re-install the silt screen each time that he observed that it was torn down. The Respondent installed a plywood fence at the site to restrict access but this was also torn down.
- The Respondent had not purchased any hay bales and he testified that he had not been able to locate any. Hay bales are commonly required as part of erosion control measures for projects involving excavation or fill, and are frequently used on projects in DEC Region 2.
- The bottom of the bay at the site consists of gravel and small rocks with some sand and/or silt. Only a small amount of fill from the fill pile entered the bay, occurring over a time period of over a year, and this material was similar to the naturally occurring soil materials in the area. No accumulations of sand or silt were observed in the littoral zone along the riprap, and the only observation of eroded sand in the littoral zone was in the intertidal area immediately adjacent to the fill pile. Silt or sand eroding into a rocky or gravely underwater habitat can increase turbidity and can harm filter-feeding organisms. In the present case, however, the limited observations about the conditions of the littoral zone at the site involved in this hearing indicate that the impacts of the erosion of the fill pile were very minor.
- As of early 2000, the Respondent had not started construction of the bulkhead.
The Respondent argued that the project site is not subject to the Department's jurisdiction, on the basis of a portion of the definition of tidal wetlands adjacent area (6 NYCRR 661.4(b)(2)). The Respondent argued that since the distance between the old bulkhead and the house on the next lot is less than 100 feet, the portion of the site located landward of an imaginary line between these two structures is not adjacent area and is not subject to DEC's jurisdiction.
This position is rejected for at least two reasons. 6 NYCRR 661.4(b)(2) is applicable to identifying the landward boundary of the adjacent area of a tidal wetland, not the boundary of a tidal wetland. In the present situation, the tidal wetland itself exists landward of the imaginary line cited by the Respondent. Further, 661.4(b)(2) is based on the locations of "substantial fabricated structures which constitute the landward limit of an adjacent area, as provided in subparagraph ii of this subdivision" The cited "subparagraph ii" is 6 NYCRR 661.4(b)(1)(ii), which lists paved streets, railroads, bulkheads and other structures, but specifically excludes individual buildings as structures to be used in locating the boundary of a tidal wetland adjacent area.
The hearing record also includes argument and evidence regarding whether the bulkhead at the site is functional, but that question need not be reached since 6 NYCRR 661.4(b)(2) is not applicable in the present case, for the two reasons discussed above.
Prior Enforcement Matter
The exhibits attached with the motion for order without hearing included an order on consent dated June 17, 1996 which resolved an enforcement action which the Department's Region 2 Staff brought against Michael J. Tubridy for alleged violations of the Tidal Wetlands Act at a different site in Broad Channel. This earlier matter involved dismantling a house and constructing a larger house and a deck without a tidal wetlands permit. The order on consent required, among other things, that the Respondent be liable for a civil penalty of $7,500, of which $2,500 was required to be paid and $5,000 was suspended provided that the Respondent comply with the order on consent and its annexed schedule of compliance.
The Department Staff requested a penalty of $500 for the failure to file the deed covenant, $500 for storage of equipment in the wetland, and $10,000 for the violations resulting from failure to install erosion controls. The first two violations were found based on the motion for order without hearing. The testimony at the hearing concerned the erosion controls.
Although the impacts of the failure to install erosion controls were relatively minor, the repeated interactions between the Department Staff and the Respondent which still had not led to effective erosion control after approximately a year should be taken into account in assessing a penalty. The Respondent claimed that he had been unable to locate hay bales, but other permit holders in New York City have generally been able to do so. On two occasions, the Respondent re-installed silt screens that had been torn down by vandals. Both of these occasions were after enforcement-related communications from the Department Staff. The Respondent was also at the site, however, at numerous additional times when the silt screens were not where he had installed them and he did not re-install them on those occasions. On the dates of at least two of the Department Staff's inspections, the screen material was in a pile on the site and was not functioning. The construction of the project appears to be dormant and the erosion is likely to continue.
In weighing the facts with regard to the penalty, both the limited environmental impacts and the Respondent's neglect of the erosion controls need to be taken into account. The penalty should be suitable to ensure that the Respondent complies with the conditions of the permit.
- The Department has jurisdiction over the location at which the fill pile was initially placed, which is in the adjacent area of a tidal wetland, and over the tidal wetland at the site including the portion of the wetland landward of an imaginary line between the bulkhead or rip rap and the house on the adjacent property. The Department also has jurisdiction over the activities authorized by the permit.
- The Respondent violated Special Condition No. 15 of the permit by failing to record the specified deed covenant regarding the existence of tidal wetlands on the site.
- The Respondent violated Special Condition No. 7 of the permit by storing construction equipment within the tidal wetland.
- The Respondent violated Special Condition No. 4 of the permit by placing fill material behind the location where the bulkhead would be constructed, prior to completing the bulkhead. To the extent that the placement of fill was part of the construction of the house, the Respondent also violated Special Condition No. 3 of the permit.
- The permit did not authorize the Respondent to place fill, directly or indirectly, into the littoral zone at the site, except to the extent that such fill was placed in an area of littoral zone behind the permitted location of the new bulkhead, after the bulkhead was completed. Placing fill, directly or indirectly, in a tidal wetland requires a permit from the Department (ECL Section 25-0401(2)).
- Similarly, ECL Section 15-0505(1) and 6 NYCRR 608.5 prohibit placement of fill below the mean high water level in any of the navigable waters of the state, or in contiguous wetlands that are inundated at high tide, without a permit from the Department. Jamaica Bay is a navigable waterway and the wetlands at the site are contiguous to it.
- The Respondent violated the permit, ECL Articles 15 and 25, and 6 NYCRR Part 608 by allowing the fill to erode into the wetland and into the navigable waters of the state.
- ECL Section 71-2503(1)(a) provides that any person who violates any provision of ECL Article 25 (Tidal Wetlands) shall be liable to the people of the state for a civil penalty of not to exceed ten thousand dollars for every such violation. ECL Section 71-1107 provides for a civil penalty of not more than five thousand dollars for violations of ECL Section 15-0505 (Protection of navigable waters; excavation or fill; permit).
The ruling on the motion for order without hearing found that no substantive disputes of fact sufficient to require a hearing had been shown with regard to two of the causes of action, but that disputes of fact did exist with regard to the cause of action concerning erosion controls. A hearing was then held about this cause of action, prior to referring the matter or portions of it to the Commissioner for issuance of an Order. The record is now closed regarding all three causes of action, and the report will be submitted to the Commissioner.
I recommend that an Order be issued which:
- imposes a penalty of $500.00 (Five hundred dollars) each for the violations of Special Conditions Nos. 7 and 15;
- imposes a penalty of $10,000 (Ten thousand dollars) for the violations associated with the failure to install and maintain erosion controls, of which $4,000 (Four thousand dollars) would be payable and $6,000 (Six thousand dollars) would be suspended conditioned on the Respondent removing the fill pile to an upland location or installing and maintaining erosion controls (silt fence and hay bales) to prevent the fill from eroding into the wetland at the site, until such time as the Respondent has stabilized the shoreline in accordance with the permit;
- requires the Respondent to record the deed covenant as specified in Special Condition No. 15 of the permit, within 30 days of service of the Order upon the Respondent.
The total recommended penalty would be $11,000.00, of which $5,000.00 would need to be paid and $6,000.00 would be suspended on the conditions stated above. The portion to be paid should be due with in 60 days of service of the Order upon the Respondent.