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Tomaino, Santino - Order, January 25, 2000

Order, January 25, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 25 of the Environmental
Conservation Law of the State of New York and Part 661 of Title 6 of the
Official Compilation of Codes, Rules and Regulations of the State of New York by

SANTINO TOMAINO,
Respondent.

ORDER

NYSDEC Case No. R1-5877-96-09
and
R1-5909-97-02

WHEREAS:

  1. Pursuant to separate Notices of Hearing and Complaints written and served by the Region 1 Staff of the Department of Environmental Conservation ("Staff"), a consolidated administrative enforcement hearing for the Respondent Santino Tomaino (the "Respondent") was held before Administrative Law Judge ("ALJ") Daniel P. O'Connell commencing on October 28, 1997 at the Department's Region 1 Office, Stony Brook, New York, and was continued on October 29, 1997, August 3, 1998, August 4, 1998, August 5, 1998 and November 4, 1998. On April 22, 1999, the consolidated action was transferred to ALJ Kevin J. Casutto due to the unavailability of ALJ O'Connell. ALJ Casutto presided over subsequent hearing sessions on April 27, 1999, April 28, 1999, June 28, 1999, June 29, 1999 and June 30, 1999, a total of eleven hearing days. The Region 1 Staff was represented by Jeanne Compitello, Assistant Regional Attorney, NYSDEC Region 1 Headquarters, SUNY Campus, Stony Brook, New York. The Respondent was represented by three successive attorneys and for periods of time appeared pro se. Since April 27, 1999, the Respondent has appeared with and continues to be represented by John J. Juliano, Esq., Hillside Building, 39 Doyle Court, East Northport, New York.
  2. Upon review of the record and the Hearing Report of ALJ Casutto (copy attached), I hereby adopt its Findings, Conclusions and Recommendations as my own.
  3. The record of this hearing establishes that the Respondent Santino Tomaino owns two parcels of real property located at 33 Peconic Trail and 84 Point Road, in the Town of Southampton, Suffolk County, New York. The shoreline of the 33 Peconic Trail property is in and adjacent to an inventoried tidal wetland. The 84 Point Road property is adjacent to an inventoried tidal wetland.
  4. The record further shows that the Respondent knowingly and willfully violated the tidal wetland law and regulations at his two properties by engaging in regulated activities without required Departmental tidal wetland permits.
  5. At the 33 Peconic Trail site, the Respondent committed several violations over a period of years. In or before August 1994 the Respondent cleared vegetation from the tidal wetland, and placed debris in the tidal wetland; in May 1995, the Respondent cleared vegetation from the tidal wetland; in or before August 1998, the Respondent again cleared vegetation from the tidal wetland, planted a lawn in the tidal wetland where he had removed the wetland vegetation and constructed a 10 ft. timber and brick retaining wall in the adjacent area of the tidal wetland. The Respondent's unpermitted actions in the tidal wetland at 33 Peconic Trail in August 1994, May 1995, and August 1996 resulted in six separate violations of ECL §25-0401(1) and 6 NYCRR §661.8.
  6. At the 84 Point Road site, from December 1996 to February 1997, the Respondent placed fill material in three areas of the site, in the adjacent area of the tidal wetland, and regraded these areas; in one of the areas, the Respondent constructed a road measuring 80 feet by 20 feet with the fill material. The Respondent also placed solid waste on another portion of the site within the adjacent area of the wetland; and cleared vegetation from the adjacent area on the site. Finally, on February 7, 1997, the Respondent placed additional fill over the entire site and installed a septic system in the adjacent area of the wetland. The Respondent's unpermitted actions in the adjacent area of the tidal wetland associated with 84 Point Road from December 1996 to February 1997 resulted in three separate violations of ECL §25-0401(1) and 6 NYCRR §661.8. The continuing "fill" violation at the site subsumes four separate charges alleged by Staff.
  7. In determining the appropriate civil penalty, I have considered the actual and potential adverse impacts to the environment and the Respondent's high degree of culpability. These circumstances were thoroughly discussed in the Report.

NOW, THEREFORE, having considered this matter, and being duly advised it is ORDERED that:

  1. The nine charges against Respondent alleging violation of ECL §§ 25-0401 and 6 NYCRR Part 661 are sustained.
  2. The Respondent's affirmative defenses, including the selective enforcement affirmative defense and the warrantless search defense, are dismissed. Regarding the latter defense, the Department's tidal wetlands administrative inspection program is proper and lawful. Moreover, the Department Staff's inspections of the Respondent's properties in the present consolidated enforcement action were proper and lawful.
  3. A civil penalty of Forty One Thousand ($41,000.00) Dollars for the Peconic Trail site violations and a civil penalty of Fifty Five Thousand ($55,000.00) Dollars for the Point Road site violations, a total civil penalty of Ninety Six Thousand ($96,000.00) Dollars, is assessed upon the Respondent Santino Tomaino, due and payable within thirty days of service upon the Respondent of a conformed copy of this Order.
  4. The Respondent, Santino Tomaino, must perform restoration and remediation at the two sites in accordance with the recommendations of, and subject to the approval of, the Department's Bureau of Marine Habitat Protection, as follows:
    1. The Peconic Trail site: The restoration plan shall include, but not be limited to, the removal of grass and the dead and decaying organic material seaward of the wall and for the planting of proper high marsh species in its place. The proper high marsh species are Iva frutescens and Baccharis halimifolia that must be planted in densities of three foot centers and Spartina patens which must be planted on densities of 12 inch centers. An upland vegetated buffer zone also must be established landward of the wall of dense vegetation of native, non-fertilizer dependent species with shrubs being planted on three foot centers and beach grass on 12 to 18 inch centers. As necessary at Staff's direction, Spartina alterniflora shall be planted in the intertidal marsh area. The Respondent shall fully and completely perform any other restoration or remediation deemed necessary by Department Staff to return the site to its natural condition.
    2. The Point Road site: The restoration plan shall include, but not be limited to the removal of the fill and debris from the site, revegetation of the wetland and, if Staff deems appropriate, the relocation of the septic system. Regarding the septic system, within thirty (30) days of the date of service of this Order upon the Respondent, the Respondent shall submit a permit application to Staff for review, describing the design and installation of the septic system or in the alternative, provide proof that the Suffolk County Department of Health has approved the design and location of the septic system. The Respondent shall fully and completely perform any other restoration or remediation deemed necessary by Department Staff to return the site to its natural condition.
  5. Any change in this Order shall not be made or become effective, except as specifically set forth by written order of the Commissioner or the Commissioner's designee, such written order being made either upon the written application of the Respondent, or upon the Commissioner's or the designee's own findings.
  6. This Order resolves only those violations specifically articulated and described herein and in no way limits the Department's authority to enforce any other violations not described herein in the manner that the Department shall deem appropriate.
  7. For the purpose of insuring compliance with this Order, and with applicable provisions of the ECL and regulations promulgated thereunder, representatives of the DEC shall be permitted access to the site and to relevant records in order to inspect and/or perform such tests as may be deemed appropriate to determine the status of Respondent's compliance.
  8. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 1 Director, NYSDEC, Building 40, SUNY Campus, Stony Brook, New York 11794.
  9. The provisions, terms and conditions of this Order shall bind the Respondent, his officers, directors, 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
/s/
JOHN P.CAHILL, COMMISSIONER

Dated: Albany, New York
January 25, 2000

To: Santino Tomaino (via Certified Mail)
80 Newton Boulevard
Lake Ronkonkoma, New York 11779

Santino Tomaino (via Certified Mail)
33 Peconic Trail
Flanders, New York 11901

John L. Juliano, P.C. (via Certified Mail)
Hillside Bldg.
39 Doyle Court
East Northport, NY 11731

Jeanne Compitello, Esq.
Assistant Regional Attorney
NYSDEC Region 1 Office
Building 40, SUNY Stony Brook Campus
Stony Brook, New York 11790-2356

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

In the Matter

- of -

Alleged violations of Article 25 (Tidal Wetlands) of the
Environmental Conservation Law and Part 661 (Tidal Wetlands)
of Title 6 of the Official Compilation of Codes, Rules and
Regulations of the State of New York, by:

SANTINO TOMAINO,
RESPONDENT

NYSDEC CASE NO's. R1-5877-96-09 and R1-5909-97-02

HEARING REPORT

- by -

/s/
Kevin J. Casutto
Administrative Law Judge

SUMMARY

This Report addresses two separate tidal wetlands enforcement cases (ECL Article 25) that involve the same Respondent, Santino Tomaino, and were adjudicated in a consolidated enforcement action. The site of the first case is 33 Peconic Trail in the Town of Southampton, Suffolk County. The second site is also in the Town of Southampton at 84 Point Road. The Administrative Law Judge concludes that the Respondent violated ECL §25-0401(1) and 6 NYCRR §661.8 by undertaking numerous regulated activities in the wetland and the regulated adjacent area at the 33 Peconic Trail site and in the regulated adjacent area of the tidal wetlands associated with the 84 Point Road site, without Departmental tidal wetlands permits. The ALJ recommends dismissal of one charge alleging use of herbicides at the Peconic Trail site. Further, the ALJ has characterized four separate alleged violations at the 84 Point Road site as one continuing violation for which daily penalties are recommended. Since the violations caused actual environmental harm to the two respective tidal wetlands, and given the Respondent's culpable mental state, the Administrative Law Judge recommends a total civil monetary penalty of $96,000 and restoration and remediation of the two sites.

PROCEEDINGS

This Hearing Report addresses two separate enforcement actions pursuant to Environmental Conservation Law ("ECL") Article 25 (Tidal Wetlands) that involve the same Respondent, Santino Tomaino. The first case relates to property located at 33 Peconic Trail, Town of Southampton, County of Suffolk, New York (the "Peconic Trail site"). The New York State Department of Environmental Conservation ("DEC" or the "Department") Region 1 Staff ("Staff") initiated this first action with a Notice of Hearing and Complaint dated September 26, 1996. The Respondent filed an Answer dated October 15, 1996, as discussed further below. Subsequently, Staff served an Amended Complaint dated February 12, 1997 that corrected typographical errors in the eighteenth and twentieth paragraphs of the initial Peconic Trail Complaint. Pursuant to Title 6 of the New York State Compilation of Codes, Rules and Regulations ("6 NYCRR") §622.9, Staff filed a Statement of Readiness dated February 13, 1997.

The second enforcement action concerns property located at 84 Point Road, Flanders, in the Town of Southampton, Suffolk County, New York (the "Point Road" site). As provided by ECL §71-2503, the Department Staff duly served the Respondent with a Cease and Desist Order dated February 12, 1997 regarding alleged violations at the Point Road site. The Respondent waived his right to a hearing to contest the Cease and Desist Order pursuant to ECL §71-2503(b). Subsequently, the Department Staff served the Respondent with a Notice of Hearing and Complaint dated February 19, 1997 concerning the allegations stated in the Cease and Desist Order. The Respondent filed an Answer dated September 29, 1997, as discussed further below. To address a potential defect concerning service of the February 19, 1997 Notice of Hearing and Complaint, the Department Staff re-served the Notice of Hearing and Complaint personally upon the Respondent, on October 10, 1997.

These actions initially were assigned to ALJ Daniel P. O'Connell. A consolidated administrative enforcement hearing to consider the allegations in both Complaints was commenced on October 28, 1997, ALJ O'Connell presiding, and continued on October 29, 1997, August 3, 1998, August 4, 1998, August 5, 1998 and November 4, 1998. On April 22, 1999, the consolidated action was transferred to ALJ Kevin J. Casutto due to the unavailability of ALJ O'Connell who was engaged in another matter. ALJ Casutto presided over the continued hearing on April 27, 1999, April 28, 1999, June 28, 1999, June 29, 1999 and June 30, 1999, a total of eleven hearing days.

Jeanne Compitello, Assistant Regional Attorney, NYSDEC Region 1 Headquarters, SUNY Campus, Building 40, Stony Brook, New York, represented the Region 1 Department Staff during the hearing.

Initially, the Respondent Santino Tomaino was represented by Michael G. Walsh, Esq., Water Mill, New York. By letter dated October 10, 1997, Mr. Walsh withdrew as the Santino Tomaino's counsel. At the hearing on October 28 and 29, 1997, the Respondent Tomaino appeared pro se. From December 1997 to April 1998, the Respondent was represented by Robert Accomando, Esq., Melville, New York. However, by letter dated May 7, 1998, Mr. Accomando withdrew as the Respondent's counsel. When the hearing reconvened on April 27, 1999, the Respondent appeared with, and continues to be represented by, John J. Juliano, Esq., Hillside Building, 39 Doyle Court, East Northport, New York.

Attached to this Hearing Report are four Appendices. Appendix A is a more detailed description of the hearing proceedings, omitted here due to length; Appendix B is a list of the witnesses who testified at the hearing; Appendix C is Staff's penalty calculation for the 33 Peconic Road site; Appendix D is is Staff's penalty calculation for the 84 Point Road site.

Receipt of final transcripts was delayed due to the extended illness of the stenographer. Final transcripts were received on October 5, 1999. Upon the timely receipt of the parties' closing briefs, the hearing record closed on November 29, 1999.

I. The Department Staff's Charges and the Relief Sought

A. 33 Peconic Trail (Complaint dated September 26, 1996)

The Department Staff contend that the Respondent's property at 33 Peconic Trail, Town of Southampton, Suffolk County, New York, is in and adjacent to an inventoried tidal wetland. The Department Staff allege that the Respondent violated ECL §25-0401(1) and provisions of 6 NYCRR Part §661 (Tidal Wetlands - Land Use Regulations) at various times from August 21, 1994 to August 9, 1996 by undertaking seven separate regulated activities in the tidal wetland without a permit.

According to the Department Staff, on or before August 21, 1994 the Respondent: (1) cleared vegetation from the tidal wetland, and (2) placed debris in the tidal wetland. Then, on May 31, 1995, the Respondent allegedly (3) cleared vegetation from the tidal wetland. Finally, on or before August 9, 1996, the Respondent allegedly: (4) cleared vegetation from the tidal wetland, (5) applied an herbicide to vegetation not in the tidal wetland, (6) planted a lawn in the tidal wetland where the wetland vegetation had been removed, and (7) constructed a 10 ft. timber and brick retaining wall in the adjacent area of the tidal wetland.

The Department Staff request a total civil monetary penalty of $51,000 for the violations alleged above. Staff assert that the requested civil penalty is authorized by ECL §71-2503(1), and is consistent with the guidance provided in the Department's Civil Penalty Policy (issued June 20, 1990) and the Tidal Wetlands Enforcement Guidance Memorandum (issued February 8, 1990.) Staff also seek an order requiring the Respondent to restore the 33 Peconic Trail site according to a plan to be approved by the Department's Bureau of Marine Habitat Protection.

B. 84 Point Road (Complaint dated February 19, 1997)

The Department Staff contend that the Respondent's property at 84 Point Road, Town of Southampton, Suffolk County, New York, is adjacent to an inventoried tidal wetland. Staff allege that the Respondent violated ECL §25-0401(1) and provisions of 6 NYCRR Part 661 from on or before February 4, 1997 through February 7, 1997 by undertaking six separate regulated activities on the site without a permit.

According to Staff, the Respondent, on or before February 4, 1997: (1) placed two volumes of fill in the adjacent area of the tidal wetland measuring about 40 feet by 70 feet by one to three feet deep, and 31 feet by 62 feet by one to three feet deep; (2) placed a volume of solid waste, which measured 60 feet by 10 feet by one to three feet deep, on another portion of the site within the adjacent area of the wetland; (3) cleared vegetation from the adjacent area on the site; and (4) constructed a road measuring 80 feet by 20 feet. Then, on February 7, 1997, the Respondent allegedly: (5) placed additional fill over the entire site; and (6) installed a septic system in the adjacent area of the wetland.

The Department Staff request a total civil monetary penalty of $55,000 for the violations alleged above. Staff assert that the requested civil penalty is authorized by ECL §71-2503(1), and is consistent with the guidance provided in the Civil Penalty Policy, supra, and the Tidal Wetlands Enforcement Guidance Memorandum, supra. Staff also seek an order requiring the Respondent to restore the 84 Point Road site according to a plan to be approved by the Department's Bureau of Marine Habitat Protection.

II. The Respondent's Answer to Each Complaint

A. 33 Peconic Trail (Answer dated October 15, 1996)

The Respondent denies all the allegations in the September 26, 1996 Complaint, and asserts that the Complaint does not state a cause of action upon which relief could be granted.

B. 84 Point Road (Answer dated September 29, 1997)

The Respondent denies all the allegations in the February 19, 1997 Complaint, and asserts three affirmative defenses. As the first affirmative defense, the Respondent asserts that the Complaint does not state a cause of action upon which relief could be granted. For the second affirmative defense, the Respondent contends that Staff did not obtain proper personal jurisdiction over the Respondent. As the third affirmative defense, the Respondent asserts that the activities complained of did not require a permit because the activities did not impair the functions and benefits of the wetland.

FINDINGS OF FACT

I. 33 Peconic Trail

  1. The Respondent Santino Tomaino owns real property located at 33 Peconic Trail, Flanders, Town of Southampton, Suffolk County, New York and has owned this property at all relevant times herein, (the "Peconic Trail Site"). The property is on an intertidal creek that flows into Flanders Bay, which flows into Peconic Bay.
  2. The Peconic Trail site is unwooded and open, and is adjacent to a flowing, navigable creek. The Peconic Trail site appears on Tidal Wetlands Map #698-530. The wetland associated with the 33 Peconic Trail site is classified as littoral zone (designated "LZ" on the Official Map).
  3. The Respondent made no attempt to restrict access to the Peconic Trail site during the time when Staff's inspections occurred. The site was not fenced and no signs were posted restricting access to the Respondent's 33 Peconic Trail property.
  4. Nonetheless, each time Department Staff inspected the Peconic Trail site, Staff first attempted to announce their presence by knocking on the door of the premises. On each such occasion Staff received no response; the premises were unoccupied.
  5. Any Staff observations of existing conditions on the Peconic Trail site were readily observable from the public right-of-ways adjacent to the 33 Peconic Trail property.
  6. The Respondent never indicated that he wanted to be contacted by Department Staff prior to Staff's Peconic Trail site inspections. It was not until August 8, 1998 that the Respondent sent a letter to the Department indicating that he wanted to be contacted by Department staff prior to any future site inspections; well after the 33 Peconic Trail site inspections at issue in this hearing had occurred.
  7. From August, 1994 through August, 1996, the following categories of tidal wetlands existed on the 33 Peconic Trail site. A littoral zone is associated with the intertidal creek as shown on Tidal Wetland Map #698-530. Moving landward from the center of the intertidal creek toward the 33 Peconic Trail property, is an area of shoals and mudflats (designated "SM" on the Official Map), then a fringe of intertidal marsh (designated "IM" on the Official Map) along the seaward edge of Peconic Trail site. The intertidal marsh on the Respondent's property is about 10 feet wide. Finally, there is an area of high marsh (designated "HM" on the Official Map) dominated by the high-tide bush, and other wetland species including Spartina patens and Phragmites. Landward of the high marsh area is a concrete block retaining wall. The remainder of the Respondent's property, landward of the retaining wall, is adjacent area.
  8. On or about August 21, 1994, an area of Phragmites and other intertidal marsh vegetation that measured approximately 57 feet by 15 feet had been cut down. The cut vegetation had been dumped into another area of the intertidal marsh on the 33 Peconic Trail site.
  9. The Respondent did not have a Departmental tidal wetlands permit that authorized him to clear wetlands vegetation from the 33 Peconic Trail site or to discard the cut vegetation in the tidal wetland.
  10. By certified mail return receipt requested, Staff sent the Respondent Tomaino a Notice of Violation dated August 29, 1994. The Respondent received this Notice of Violation by certified mail on September 10, 1994.
  11. In the August 29, 1994 Notice of Violation, Staff allege that on or before August 21, 1994, the Respondent violated ECL §15-0505(1) and 6 NYCRR Part 608 (Protection of Waters) and ECL §0401(1) and 6 NYCRR Part 661 (Tidal Wetlands) at the Peconic Trail site. The Notice of Violation advised the Respondent of possible criminal, civil or administrative sanctions, including possible assessment of monetary sanctions. Lastly, the Notice advises the Respondent that he may contact Staff within 30 days of receipt of the Notice, to attempt to resolve the alleged violations.
  12. As provided for by the Notice of Violation, the Respondent Tomaino met with the Region 1 Department Staff in October 1994. During the pre-hearing conference, Staff explained the tidal wetland regulations to the Respondent, identified the regulated areas on the Peconic Trail site and discussed the site conditions observed by Staff during their August 21, 1994 site inspection.
  13. On May 31, 1995, again wetlands vegetation was cleared from the intertidal marsh area of the Peconic Trail site. The area cleared of vegetation was larger on May 31, 1995 than the area cleared in August 1994.
  14. The Respondent did not have a Departmental tidal wetlands permit that authorized the clearing of wetlands vegetation from the Peconic Trail site.
  15. On June 16, 1995, the Department Staff inspected the Peconic Trail site. The shoreline of the Respondent's property at 33 Peconic Trail was eroding due to the lack of vegetation in the intertidal marsh area.
  16. Staff sent a second Notice of Violation dated June 19, 1995 to the Respondent Santino Tomaino by certified mail return receipt requested. The Respondent received the June 19, 1995 Notice of Violation on June 21, 1995.
  17. The June 19, 1995 Notice of Violation alleges that the Respondent Santino Tomaino has violated ECL §§25-0401(1) and 15-0505(1), and 6 NYCRR Parts 608 and 661. The Notice also advises the Respondent to contact the Regional Staff to attempt to resolve the alleged violations.
  18. On August 9, 1996, the Department Staff inspected the 33 Peconic Trail site. Between May 31, 1995, all the intertidal marsh and high marsh vegetation had been cut down and removed from the site.
  19. Between May 31, 1995 and August 9, 1996, a grass lawn had been planted in the area previously vegetated with high marsh plant species. In addition, the concrete block retaining wall was altered; it had been extended 10 feet in length. The new extension was composed of bricks and timbers. A new cement cap had been placed over the entire length of the retaining wall.
  20. Department Staff sent the Respondent Tomaino a Notice of Violation dated August 21, 1996 by certified mail return receipt requested. It cannot be determined whether the Respondent received the August 21, 1996 Notice of Violation.
  21. The intertidal creek adjacent to the Respondent's property flows into Flanders Bay and then into Peconic Bay. Peconic Bay is classified as SA(1), and is therefore suitable for shellfish propagation and harvesting. The alterations to the retaining wall allow fill to erode from behind the retaining wall into the tidal wetland.

II. 84 Point Road

  1. The Respondent Santino Tomaino owns property at 84 Point Road, Flanders, Town of Southampton, Suffolk County, New York (the "Point Road site").
  2. The 84 Point Road site is unwooded and open, and is adjacent to a flowing, navigable creek. The 84 Point Road site also appears on Tidal Wetland Map #698-530. The inventoried tidal wetland associated with this site is classified as formerly connected (designated "FC" on the Official Map(2)). All of the Respondent's 84 Point Road property is within the adjacent area of this inventoried tidal wetland.
  3. The Respondent made no attempt to restrict access to the 84 Point Road site during the time when Staff's inspections occurred. The site was not fenced and no signs were posted restricting access to the Respondent's 84 Point Road property.
  4. Nonetheless, each time Department Staff inspected the 84 Point Road site, Staff first attempted to announce their presence by knocking on the door of the premises. On each such occasion, Staff received no response; the premises were unoccupied.
  5. Any Staff observations of existing conditions on the 84 Point Road site were readily observable from the public right-of-ways adjacent to the Respondent's 84 Point Road property.
  6. The Respondent never indicated that he wanted to be contacted by Department Staff prior to Staff's 84 Point Road site inspections. As noted above, it was not until August 8, 1998 that the Respondent sent a letter to the Department indicating that he wanted to be contacted by Department staff prior to any future site inspections; well after the 84 Point Road site inspections that are at issue in this hearing had occurred.
  7. In December 1996, the Respondent Tomaino contracted with Tufano Asphalt Paving Co., Inc., Quogue, New York, to regrade the 84 Point Road site with fill material and install a new septic system. From December 1996 through February 1997, employees of Tufano Asphalt Paving Co., Inc., performed work at the 84 Point Road site that included bringing at least 540 cubic yards of fill material to the site, and regrading the site with that fill; and installation of a new septic system. The Respondent paid Tufano Asphalt Paving Co., Inc., approximately $7,000.00 for delivery of the fill and regrading of the site.
  8. The Respondent Tomaino told representatives of Tufano Asphalt Paving Co., Inc., that no permits were needed to regrade the 84 Point Road site with fill material. Furthermore, the Respondent's wife, Janet Tomaino, signed an agreement with Tufano Asphalt Paving Co., Inc., dated January 28, 1997, to pay any fines or penalties that might result from the work that Tufano Asphalt Paving Co., Inc., performed at the site.
  9. In early February 1997, prior to February 8, 1997, Tufano Asphalt Paving Co., Inc., installed a new septic system on the Point Road site that consisted of a tank and a ring.
  10. On February 2, 1997, Department Staff conducted an inspection of the 84 Point Road site. Staff observed a band of debris on the 84 Point Road site that was between the seaward edge of the wetland and the fill. The debris consisted of tree limbs and construction lumber. This debris filled an area approximately 60 feet long. The width of this area varied from 6 feet to 10 feet.
  11. On February 4, 1997, the Department Staff conducted another inspection of the 84 Point Road site. Staff observed a one story single family residence and a large amount of fill at the site. Part of the fill had already been graded into the site. In addition, several ungraded piles of fill had been dumped in the back yard in areas that had recently been regraded with fill material. Each pile was about 10 feet long, eight feet wide and six feet high.
  12. Three separate areas on the 84 Point Road site had been regraded with new fill. One area, on the side of the house is 31 feet by 62 feet. Two additional separate areas were in the backyard of the site: One area measured approximately 40 feet by 70 feet. The third area of fill was part of a newly constructed roadway on the site. This area was approximately 80 feet by 20 feet. The depth of the graded fill on the site varied from ½ foot to three feet.
  13. Finally, on February 4, 1997 a small pile of fill was located on the Point Road site approximately 10 feet from the wetland boundary, near the end of Short Road.
  14. By certified mail return receipt requested, Staff sent the Respondent Tomaino a Notice of Violation dated February 5, 1997. Since the Respondent Tomaino never claimed the Notice of Violation at the U.S. Post Office, the U.S. Postal Service returned the Notice of Violation to Staff. Subsequently, the Staff mailed the February 5, 1997 Notice of Violation to the Respondent Tomaino by regular mail.
  15. Staff returned to the 84 Point Road site on February 7, 1997. The ungraded piles of fill observed on February 5, 1997, had been graded onto the site.
  16. By certified mail return receipt requested, Staff sent the Respondent Tomaino a Notice of Violation dated February 7, 1997. Since the Respondent Tomaino did not claim the Notice of Violation by March 5, 1997, the U.S. Postal Service returned it to the Department Staff. Subsequently, Staff mailed the February 7, 1997 Notice of Violation to the Respondent Tomaino by regular mail.
  17. On June 7, 1997, Staff returned to the 84 Point Road site. On June 7, 1997, the Department Staff observed that fill had been leveled across the side yard and backyard of the site. This fill went into the formerly connected tidal wetland on the site. Staff observed several piles of landscaping debris and wood chips, and cut Christmas trees and branches. Staff also observed hay bales placed parallel to the fill in the wetland.
  18. By certified mail, Staff sent the Respondent Tomaino a Notice of Violation dated June 23, 1997.
  19. On September 9, 1997, the fill placed along the wetland boundary of the Point Road site in February 1997, was eroding into the tidal wetland.
  20. On October 17, 1997, Staff returned to the 84 Point Road site. On October 17, 1997, the Department Staff observed that further plumbing work had been done, related to the septic system and some new vegetation had been planted. The landscape debris, hay bales and fill continued to be present in and adjacent to the wetland and the well-established lawn again was noted (as described above).
  21. By letter dated August 8, 1998, the Respondent notified Department Staff not to trespass on his properties.

DISCUSSION

I. The Administrative Inspection Program

The Respondent asserts that the administrative inspections of the Respondent's properties conducted by Department Staff without a warrant violate the constitutional protections against unreasonable search and seizure, as set forth in the U.S. Constitution (Fourth, Fifth and Fourteenth Amendments) and the New York Constitution (Article 1, Sections 6 and 12). Further, the Respondent asserts that Staff have violated the Respondent's substantive due process rights of liberty and privacy. The Respondent asserts that Staff's administrative inspections amount to searches and seizures conducted without the issuance of an "administrative warrant." The Respondent concludes that Staff's violation of the Respondent's constitutionally protected rights, mandates dismissal of all charges against the Respondent Santino Tomaino. The Respondent relies upon several US Supreme Court cases to support this argument(3). The Respondent also relies upon Sokolov v The Village of Freeport, 52 NY 2d 341, 420 NE2d 55, 438 NYS2d 257 (1981).

Staff counter that ECL §3-0301(2)(g) provides authority for Staff to "[e]nter and inspect any property or premises for the purpose of investigating either actual or suspected sources of pollution or contamination or for the purpose of ascertaining compliance or noncompliance with any law, rule or regulation which may be promulgated pursuant to this chapter." ECL §3-0301(2)(g).

Further, Staff assert that Departmental authority to inspect properties containing wetlands was upheld in FRJE Holding Corp. v Jorling, 193 AD2d 1013, 598 NYS2d 100 (3rd Dep't. 1993). In FRJE Holding Corp., the court found that a property owner had no reasonable expectation of privacy regarding an unfenced freshwater wetland where the violation was visible from a public right-of-way; therefore, the Court deemed the Departmental inspection to be reasonable, not violative of state or federal constitutional principles.

In FRJE Holding Corp., the Appellee/landowner had obtained a freshwater wetlands permit that provided for site inspections by the Department Staff. But, in the present case the Respondent failed to obtain the required tidal wetlands permits. The Respondent's failure to obtain required permits should not inure to the Respondent's benefit. Therefore, I find that the absence of a permit providing inspection authority in the present action does not limit the applicability of FRJE Holding Corp., to the present case.

By comparison, the Respondent cites Sokolov, supra, for the proposition that administrative agencies cannot conduct investigations that infringe on constitutional rights of the people. However, this is a truism. The Respondent failed to articulate how or why that principle applies in the present case. Similarly, the Respondent has failed to provide any analysis of the federal caselaw he identified (see, footnote 3, supra.)

Staff assert that the tidal wetlands administrative inspection program and Staff's inspections of the Respondent's properties in the present action were proper and lawful. Staff conclude that none of the photographs or testimony resulting from those inspections should be suppressed.

Staff assert that the Respondent's two properties are unwooded, open and readily can be viewed from the public road or public right-of-ways adjacent to the site. Staff first attempted to announce their presence by knocking on the door of the premises each time Staff inspected either property, on each occasion, at both properties, the premises were unoccupied; Staff received no response. Also, since both properties are adjacent to flowing, navigable waters, public access to the sites exist via the waters of the state.

Staff assert that the Respondent made no attempt to restrict access to either of these properties during the time when the inspections occurred; the properties were not fenced and no signs were posted restricting access to the 33 Peconic Trail property or the 84 Point Road property.

Lastly, the Respondent never indicated that he wanted to be contacted by Department Staff prior to Staff's site inspections. It was not until August 8, 1998 that the Respondent sent a letter to the Department showing that he wanted to be contacted by Department staff before any future site inspections; well after the site inspections that are at issue in this hearing had occurred.

The issue of unconstitutional search and seizure was raised earlier in this proceeding by one of the Respondent's previous counsel. On January 20, 1998, the Respondent moved to suppress most of the evidence offered by the Department Staff, based upon the protections provided by the US Constitution and the New York State Constitution. ALJ O'Connell, then presiding, denied the motion to suppress by ruling dated February 5, 1998. As ALJ O'Connell noted in that ruling, constitutional claims must be submitted to a Court of appropriate jurisdiction (citing, Matter of 303 West 42nd Street v Klein, 46 NY2d 686 [1979] and Matter of DiMaggio v Brown, 19 NY2d 283, 291-292 [1967]); but, the Commissioner may decide to exclude certain evidence if he concludes that the evidence is tainted or was gathered in violation of a persons's constitutional rights. In denying the Respondent's motion to suppress, ALJ O'Connell noted that the Respondent has adequately preserved his constitutional claims for judicial review by bringing the motion to suppress. Nonetheless, ALJ O'Connell noted that during the reconvened hearing, the Respondent would be given an opportunity to develop the record fully on circumstances surrounding the Department Staff's inspections. The Respondent has been afforded that opportunity.

The Respondent may pursue these constitutional claims in a court of appropriate jurisdiction. For purposes of this administrative action, I find that the administrative inspections conducted by Staff were lawful, proper administrative inspections. I recommend that the Commissioner rely upon the record evidence in this proceeding in making his determination in this action, including evidence of Staff's inspections of the Respondent's properties.

II. Selective Enforcement

The Respondent has asserted as an affirmative defense that Staff's enforcement action against him was brought by Department Staff at the behest of a private party, who owns real property across the canal from the Respondent's 84 Point Road property. The affirmative defense of selective enforcement is a constitutional affirmative defense. As discussed in the preceding section, constitutional issues generally may not be determined in the administrative forum, but must be pursued before a court of competent jurisdiction.

ALJ O'Connell allowed the Respondent to develop a limited record on this affirmative defense, and further stated that the Respondent could pursue the related issue of whether Staff acted fairly and appropriately with respect to the pending charges against the Respondent. On August 11, 1998, Staff filed an expedited appeal of this ALJ bench ruling, asserting prejudice to Staff and undue inefficiency in the conduct of the hearing. The Respondent filed an opposition brief dated August 17, 1998, asserting that the Respondent has the right to cross-examine the Department Staff's witnesses regarding issues of credibility and motive.

The Commissioner's ruling on the expedited motion was issued on August 31, 1998. The Commissioner stated that, "purported selective enforcement and/or unfair conduct by Staff in no way justify or excuse Respondent's alleged violations of the Tidal Wetlands Law, and accordingly selective enforcement and/or unfairness are not affirmative defenses in this case [citation omitted]. Staff's appeal is granted to the extent that those two affirmative defenses are stricken. While I am granting Staff's appeal, this ruling is not intended to curtail or restrict the manner in which the Respondent chooses to develop the record or present his case (within applicable rules)." In the Matter of Santino Tomaino, NYSDEC Case No's. 1-5877-96-09 and 1-5909-97-02, Commissioner's Ruling on Expedited Appeal, at 4 (August 31, 1998).

On April 27, 1999 and subsequently, consistent with the Commissioner's August 31, 1998 ruling, I limited the Respondent's further development of the selective enforcement/unfairness affirmative defenses because the Respondent's pursuit of these issues was developing into a "hearing within the hearing" on matters that are collateral to the primary issues before this Department - - i.e., whether the alleged tidal wetland violations had occurred. Consistent with the Commissioner's August 31, 1998 ruling, I ruled that the selective enforcement affirmative defense was not relevant to the determination of whether the alleged tidal wetland violations had occurred.

At the same time, I advised the parties that the selective enforcement affirmative defense, if true, raises very serious charges against the Department Staff. Without making any judgment as to the veracity of the Respondent's allegations, I advised the Respondent that this claim must be pursued in the courts, whether through a state CPLR Article 78 proceeding, a federal civil rights act proceeding (42 USC §1983) or other appropriate court proceeding.

III. Liability

ECL §25-0401(1) sets forth the requirement that no person may conduct any activities regulated pursuant to ECL Article 25 unless he has obtained a Departmental tidal wetlands permit for the proposed activity. Regulated activities include "any form of dumping filling, or depositing, either directly or indirectly, of any soil, stones, sand, gravel, mud, rubbish, or fill of any kind; the erection of any structures or roads, the driving of any pilings, or placing of any other obstructions, whether or not changing the ebb and flow of the tide, and any other activity within or immediately adjacent to inventoried wetlands which may substantially impair or alter the natural condition of the tidal wetland area." ECL §25-0401(2).

The tidal wetland regulations are set forth in 6 NYCRR Part 661. 6 NYCRR §661.4(ee) provides a definition of the term "regulated activity" that is substantially the same as the statutory definition. Specific regulated activities that require a Departmental permit when such activities would be undertaken in either the tidal wetland or the adjacent area are identified in 6 NYCRR §661.5(b).

A. 33 Peconic Trail

The Respondent's property at 33 Peconic Trail is within and adjacent to an inventoried tidal wetland. In Staff's initial and amended complaints, Staff assert that the Respondent Tomaino violated ECL §25-0401(1) and various provisions of 6 NYCRR Part §661 on August 21, 1994, May 31, 1995 and August 9, 1996. Staff assert that the Respondent engaged in seven separate and distinct regulated activities at 33 Peconic Trail without a Departmental tidal wetlands permit.

According to the Amended Complaint, the Respondent allegedly:

  1. placed debris in the tidal wetland on or before August 21, 1994,
  2. cleared vegetation in and adjacent to the tidal wetland on or before August 21, 1994,
  3. cleared vegetation in and adjacent to the tidal wetland on or before May 31, 1995,
  4. cleared vegetation in and adjacent to the tidal wetland on or before August 9, 1996,
  5. caused the application of herbicides on tidal wetland vegetation in the tidal wetland and its adjacent area on or before August 9, 1996,
  6. planted a lawn in the area of the tidal wetland where the wetland vegetation had been removed on or before August 9, 1996, and
  7. constructed a 10 ft. timber and brick retaining wall in the adjacent area of the tidal wetland on or before August 9, 1996.

With respect to the uses outlined in 6 NYCRR §661.5(b), Use No. 24 concerns the substantial restoration or reconstruction of existing functional structures, such as the Respondent's retaining wall located in the high marsh area of the site. Although this regulated activity is generally compatible with the functions and benefits provided by the tidal wetland, a Departmental tidal wetlands permit is required.

Use No. 53 [6 NYCRR §661.5(b)(53)] relates to the use and application of pesticides, which include herbicides (See definitions provided at ECL §33-0101[23] and [35].) This regulated activity is incompatible with the functions and benefits provided by the tidal wetland, and presumptively incompatible when this activity is undertaken in the adjacent area.

Use No. 57 [6 NYCRR §661.5(b)(57)] relates to any other regulated activity not expressly identified in 6 NYCRR §661.5(b). The applicability of Use No. 57 is determined by the definition of the term "regulated activity" (see, 6 NYCRR §661.4[ee]).

The regulated activities undertaken by the Respondent that relate to Use No. 57 include the repeated clearing of vegetation in August 1994, May 1995 and August 1996, disposing of the cut vegetation in a second area of the tidal wetland in August 1994, and planting a lawn in the wetland in August 1996. These are regulated activities because they could, and in fact have, substantially altered the natural condition of the tidal wetland on the 33 Peconic Trail site. The Respondent removed certain plant species from the site that are expressly identified in ECL §25-0103(1) as wetland vegetation. These are indicator species that define the extent of tidal wetland areas.

The wetland vegetation that had been cut was discarded in another area of the tidal wetland. The discarded wetland vegetation crushed and matted down the existing vegetation in this second area of the wetland. Planting and maintaining a lawn in an area where wetland vegetation once grew prevents the growth and development of natural wetland plant species.

As noted above, the Respondent's property at 33 Peconic Trail is within and adjacent to an inventoried tidal wetland. In August 1994, May 1995, and August 1996, the Respondent Tomaino undertook regulated activities in the tidal wetland that included clearing wetland vegetation on three separate occasions, disposing of the cut vegetation in another area of the tidal wetland, planting a lawn, and reconstructing the retaining wall. The Respondent did not have a Departmental tidal wetlands permit that authorized any of these regulated activities. Therefore, the Respondent violated ECL §25-0401(1) and 6 NYCRR §661.8 by undertaking these regulated activities in the tidal wetland without a Departmental tidal wetlands permit. However, the fifth allegation summarized above, application of herbicide, is not sustained on the record before me.

B. 84 Point Road

In the February 19, 1997 Complaint, the Department Staff assert that the Respondent Tomaino violated ECL §25-0401(1) and various provisions of 6 NYCRR Part §661 on February 5, 1997 and February 7, 1997. Staff assert that the Respondent engaged in six separate regulated activities at 84 Point Road without a permit. According to the Complaint, the Respondent allegedly:

  1. filled two separate areas of the area adjacent to an inventoried tidal wetland measuring approximately 40 feet by 70 feet, and 31 feet by 62 feet, respectively, on or before February 4, 1997,
  2. disposed of solid waste in the form of tree limbs and construction lumber on a different area of the site measuring 10 feet by 60 feet on or before February 4, 1997,
  3. removed and damaged vegetation in the adjacent area on or before February 4, 1997,
  4. constructed an access road about 80 feet long and 20 feet wide on or before February 4, 1997 February 5, 1997,
  5. continued to fill the site and disturb vegetation on or before February 7, 1997, and
  6. installed a septic system in the adjacent area on or before February 7, 1997.

With respect to the uses outlined in 6 NYCRR §661.5(b), No. 30 concerns fill. Although this regulated activity is generally compatible in the adjacent area of a tidal wetland, a permit from the Department is required.

Use No. 45 [6 NYCRR §661.5(b)(45)] relates to the installation of a new septic system. This regulated activity is also considered generally compatible when undertaken in the adjacent area of a tidal wetland, but a Departmental tidal wetlands permit is necessary.

Use No. 56 [6 NYCRR §661.5(b)(56)] concerns the disposal of solid waste. This regulated activity is presumptively incompatible when undertaken in the adjacent area. The tree limbs and construction lumber that Staff observed on the 84 Point Road site are discarded materials similar to those described in the statutory definition of the term "solid waste". See, ECL §27-0501(7).

Use No. 57 [6 NYCRR §661.5(b)(57)] relates to any other regulated activity not expressly identified in 6 NYCRR §661.5(b). The applicability of Use No. 57 is determined by the definition of the term "regulated activity" which is provided in 6 NYCRR §661.4(ee). The Department Staff argue that the vegetation cleared from the adjacent area on the 84 Point Road site should be considered a regulated activity because such an activity would substantially alter or impair the natural condition or function of the tidal wetland. This argument is addressed further below.

The Respondent's property at 84 Point Road is adjacent to an inventoried tidal wetland. From December 1996 to February 1997, the Respondent Tomaino undertook regulated activities in the adjacent area that included filling several different areas of the site over an extended period, discarding debris, and installing a septic system. The Respondent did not have a Departmental tidal wetlands permit that authorized any of these regulated activities. Therefore, by undertaking these regulated activities in an area adjacent to an inventoried tidal wetland without a Departmental permit, the Respondent violated ECL §25-0401(1) and 6 NYCRR §661.8.

C. The Number of Violations

When each of a respondent's activities is a distinct regulated activity that independently would require a Departmental permit, then each unpermitted regulated activity is a separate violation. Linda Wilton and Costello Marine, Inc., Commissioner's Order, February 1, 1991. Further, even if a single project includes many different activities, each activity that is discrete can constitute a separate finding of violation. To limit the law otherwise would allow a respondent to perform an unlimited number of violations with impunity after that respondent engaged in the first illegal activity. Beaver Dam Condominiums, Ltd., Order of the Commissioner, September 16, 1991; see also, In the Matter of Louis Bruni, Order of the Commissioner, January 18, 1997. Finally, ECL §71-2503(1) provides that during a continuing violation, each continuing day is deemed a separate and distinct violation.

These principles apply to the violations that occurred at 33 Peconic Trail and at 84 Point Road. Regarding the Peconic Trail site, the seven alleged violations enumerated in the Complaint relate to seven distinct regulated activities. Consequently each alleged violation is considered a separate and distinct violation(4). The Department Staff's observations that the Respondent cleared wetland vegetation from the site without a permit in August 1994, in May 1995 and then again in August 1996 demonstrate the continuous nature of this regulated activity.

Regarding the Point Road site, Mr. Tufano's uncontroverted testimony established that pursuant to an agreement with the Respondent Tomaino, from December 1996 through February 1997 Tufano Asphalt Paving Co., Inc., brought at least 540 cubic yards of fill to the site and regraded the site with this fill material (charges 1, 4 and 5, summarized above; the "fill charges".) The fill charges alleged by Staff as three separate violations occurred in close proximity in time and are closely related to the 540 cubic yards of fill material delivered to the site by Tufano Asphalt Paving Co., Inc. In this instance, the fill and regrading of the site is most appropriately described as one continuing activity.

Consequently, Staff's three fill charges (charges 1, 4 and 5) are appropriately considered one continuing fill violation that occurred during the time Tufano Asphalt Paving Co., Inc., was at the site delivering the fill material and regrading the site - - i.e., at least 36 days, during the month of January 1997 and through February 5, 1997. It is uncontroverted that the Respondent did not have any Departmental tidal wetlands permit for these continuing fill activities. Thus, these activities constitute a continuing violation of ECL Article 25 and 6 NYCRR Part 661, that continued for at least 36 days. As provided by ECL §71-2503(1), each day that this violation continued may be considered a separate and distinct violation. Charges 1, 4 and 5, described above, are treated as one continuing fill violation for purposes of penalty assessment.

Regarding charge 3 (clearing and damaging vegetation on the site), although clearing vegetation from the adjacent area of a tidal wetland may be considered a regulated activity, the vegetation damaged on the 84 Point Road site occurred when the Respondent regraded the site with fill material. Consequently, the charge 3 allegations are not separate and distinct activity from the continuing fill violation discussed above, even though Staff have proven the underlying facts. In this instance, the damaged vegetation in the adjacent area could adversely impact the tidal wetlands. These facts properly should be considered an aggravating factor in determining an appropriate civil penalty on the fill charges. Therefore, Staff's charge 3 is considered further below, with the other fill charges.

The second separate and distinct violation occurred when the Respondent disposed of solid waste on the 84 Point Road site or allowed such solid waste to be discarded on the site without a permit (i.e., tree limbs and construction lumber; charge 2, summarized above). As concluded above, the tree limbs and construction lumber are solid waste. The disposal of this debris in the adjacent area of a tidal wetland requires a permit from the Department.

Since the Respondent owned and controlled the site, it is reasonable to conclude that he caused the waste material to be deposited there. I reject the Respondent's contention that the material was deposited by an unknown third party, without the Respondent's knowledge or consent. His testimony that the two properties were subject to recurring incidents of vandalism, including the removal of "no trespassing" signs and the depositing of the solid waste, was unsupported by any evidence that he filed any complaint with any police agency or other public agency regarding any incident of purported vandalism.

The third separate and distinct violation proven at the hearing relates to installation of the septic system (charge 6, summarized above). The Respondent caused a new septic system to be installed on the site in February 1997, prior to February 8, 1997, without a Departmental permit. This violation is proven through Mr. Tufano's uncontroverted testimony and independently is established through Staff's testimony concerning the septic system.

In sum, the Respondent is liable for a total of 9 separate violations of ECL §25-0401(1). The Respondent committed six violations associated with the 33 Peconic Trail site, and three violations associated with the 84 Point Road site, including the continuing fill violation that subsumes Staff's charges 1, 3, 4 and 5.

IV. Penalties

Environmental Conservation Law §71-2503 provides for civil penalties of up to $10,000 for each violation of ECL Article 25. The Civil Penalty Policy, dated June 20, 1990, and the Tidal Wetlands Enforcement Guidance Memorandum, dated February 8, 1990 provide guidance for determining an appropriate civil penalty. ECL §71-2503 also authorizes the Commissioner to order restoration and remediation.

A. The Civil Penalty

The hearing focused, in part, on whether the Respondent's actions caused any actual and potential impacts to the tidal wetlands associated with the two sites. In addition to environmental impacts, Staff assert that the Respondent's culpability is another factor to be considered in determining an appropriate civil penalty in this action.

1. Environmental Impacts

Actual and potential environmental impacts are relevant to determining the appropriate civil penalty. Civil Penalty Policy, at 7. Such impacts are considered aggravating circumstances and can be the basis for increasing the civil penalty. However, the absence of environmental impacts is not a mitigating factor under the Civil Penalty Policy. (Consequently, the absence of environmental impacts would not warrant a downward adjustment in the civil penalty.)

The record shows that the Respondent's actions at the 33 Peconic Trail site have adversely impacted the tidal wetland and the water quality of the intertidal creek. On June 16, 1995, the Department Staff observed that the shoreline of the Respondent's property was eroding due to the lack of vegetation in the intertidal marsh area. Absent any wetland vegetation, the area can no longer serve as a food source or as habitat for marine animals. In addition, runoff loaded with silt and organic materials from the upland areas can freely wash into the wetland and the intertidal creek. Finally, the tidal wetland cannot offer any protection from storm events. Consequently, accelerated erosion of the site will continue.

The record shows that the Respondent's actions at the 84 Point Road site have adversely impacted the tidal wetlands associated with this site. On June 7, 1997, the Department Staff observed that fill had been leveled across the side yard and backyard of the site. This fill went into the formerly connected wetland on the site. Staff observed several piles of landscaping debris and wood chips, and cut Christmas trees and branches. Staff also observed hay bales placed parallel to the fill in the wetland.

On June 7, 1997, September 9, 1997 and October 17, 1997, the Department Staff observed that part of the fill placed on the 84 Point Road site had been placed directly into the high marsh tidal wetland. Other fill was eroding into the tidal wetland from the adjacent area. In addition, fill placed on the site has buried and damaged the upland vegetation that had been growing in the adjacent area. The absence of vegetation prevents the adjacent area from functioning normally as an adjacent area and acting as a buffer to the tidal wetland. Consequently, runoff loaded with silt and organic materials from the upland areas can freely wash into the wetland. Wetland values adversely impacted by the Respondent's activities include losses to marine food production, reduced flood and erosion control and reduced storm control.

The Commissioner should consider the actual environmental impacts resulting from the Respondent's actions at the two sites to be an aggravating factor that justifies a significant civil penalty.

2. The Respondent's Culpability

A violator's culpable mental state may be a factor in deciding an appropriate civil penalty. Civil Penalty Policy, at 9. The Civil Penalty Policy suggests considering two factors: (1) the amount of control the Respondent had over the events constituting the violations, and (2) the likelihood that the Respondent knew his actions constituted violations.

At all relevant times, the Respondent owned the 33 Peconic Trail site and the 84 Point Road site. Therefore, at all relevant times, the Respondent had substantial control over the sites.

The record evidence shows that the Respondent knew his actions constituted violations of ECL Article 25. With respect to the 33 Peconic Trail site, the Respondent received a Notice of Violation dated August 29, 1994 resulting from Staff's inspection of the site on August 21, 1994. As provided by the Notice of Violation, the Respondent Tomaino met with the Region 1 Department Staff in October 1994. At that time, the Department Staff explained the tidal wetland regulations to the Respondent Santino Tomaino; Staff identified the regulated areas on the Respondent's property, and discussed the site conditions that Staff had observed on August 21, 1994.

Nevertheless, when the Department Staff returned to the 33 Peconic Trail site on May 31, 1995, they observed that, again, the Respondent knowingly and wilfully had cleared vegetation from the tidal wetland without a permit. Consequently, the Respondent Tomaino received another Notice of Violation (June 19, 1995) concerning the Department Staff's observations of the site.

Nonetheless, on August 9, 1996 Department Staff visited the 33 Peconic Trail site. For the third time in as many visits, Staff observed that the Respondent continued to engage in regulated activities in the tidal wetland without a permit - - despite the two previous Notices of Violation, and the conference with the Department Staff. Based on the circumstances outlined above, the Respondent had become aware of the tidal wetland regulations and how the regulations actually applied to his property at 33 Peconic Trail, but, knowingly and willfully chose to disregard them.

When the Respondent contracted with the Tufano Asphalt Paving Co., Inc., to fill the 84 Point Road site in December 1996, Staff had already served the Respondent with the September 26, 1996 Complaint concerning the 33 Peconic Trail site. Consequently, all the circumstances associated with the 33 Peconic Trail site, including the Notices of Violation and the October 1994 conference with Staff, occurred before the Respondent started to fill the 84 Point Road site.

Moreover, despite the pending administrative enforcement action concerning the Respondent's activities at the 33 Peconic Trail site, the Respondent Tomaino quickly dismissed the concerns of his contractor Tufano Asphalt Paving Co., Inc., about the possibility of needing a Departmental permit to fill the 84 Point Road site. The Respondent knew of the tidal wetland regulations and their applicability to his 84 Point Road property, but again willfully, intentionally and knowingly chose to disregard them.

Therefore, the Commissioner should consider the Respondent's knowing and willful disregard of the tidal wetlands regulatory program a significant aggravating factor that further justifies a substantial civil penalty.

3. Recommended Civil Penalty

The guidance outlined in the Tidal Wetland Enforcement Guidance Memorandum suggests beginning at the maximum penalty amount, which is $10,000 per violations (ECL §71-2503). No mitigating circumstances warrant a downward adjustment of the civil penalty here. Tidal Wetland Enforcement Guidance Memorandum at 7. Moreover, the actual environmental impacts and the Respondent's high degree of culpability with respect to his actions at both sites are aggravating factors that justify a significant civil penalty.

The Department Staff requested a total civil monetary penalty of $51,000.00 for the 33 Peconic Trail site. As part of the September 26, 1996 Complaint concerning the 33 Peconic Trail site, Staff attached a penalty calculation(5). That penalty calculation is attached to this Report as Appendix C. Staff's penalty calculation identifies the seven separate violations alleged in the Complaint, and refers to the appropriate numbered Complaint paragraphs. For each violation, the penalty calculation identifies the civil monetary penalty sought by the Department Staff. Excluding the herbicide charge, not sustained (charge #5, summarized above), Staff's requested penalty is $41,000.00.

The Commissioner should adopt the Department Staff's penalty calculation concerning the 33 Peconic Trail site, and assess civil penalties in the following manner. As discussed above, the first and second violations occurred in August 1994 when the Respondent cleared vegetation from the tidal wetland, and then disposed of that material in another area of the tidal wetland. The Commissioner should assess a civil monetary penalty of $3,000 for each of these two violations.

The third violation occurred in May 1995 when the Respondent cleared wetland vegetation from the site at 33 Peconic Trail for the second time. The fourth violation occurred in August 1996 when the Respondent cleared wetland vegetation from the site, for the third time in as many years. The civil penalties for the third and fourth violations should be higher than the civil penalties assessed for the first two violations due to the culpable nature of the Respondent's actions. With respect to the third violation, the Respondent had received a Notice of Violation from the Department Staff in September 1994 concerning the first two violations. In addition, the Respondent had met with the Department Staff in October 1994 to discuss the tidal wetland regulations, their applicability to his property, and the circumstances of the August 1994 violations. With respect to the fourth violation, the Respondent had received a second Notice of Violation in June 1995, concerning the violation that had occurred in May 1995. Consequently, the civil monetary penalty for the third and fourth violations should be $5,000 and $10,000 respectively.

The Commissioner should assess a $10,000 civil monetary penalty for each of the two additional violations (charges 6 and 7). They are respectively, planting and maintaining a lawn in the tidal wetland that had been previously cleared of wetland vegetation, and extending the concrete block retaining wall in the adjacent area of the tidal wetland by 10 feet. As explained above, planting and maintaining a lawn in the tidal wetland area has substantially altered the natural condition of the site and has cause actual environmental harm to the wetland and intertidal creek. Although the construction of a retaining wall in the high marsh area of the wetland on the Respondent's property would be considered a generally compatible activity, the Respondent was well aware by this time of the need to obtain a permit from the Department before undertaking this or any other regulated activity on the site.

In sum, for reasons described above, the Commissioner should assess a total civil monetary penalty of $41,000.00 for the Respondent's six violations associated with the 33 Peconic Trail site.

The Department Staff requested a total civil monetary penalty of $55,000.00 for the 84 Point Road site. With the February 19, 1997 Complaint concerning the 84 Point Road site, the Department Staff attached a penalty calculation. Staff's penalty calculation is attached to this Hearing Report as Appendix D. The penalty calculation identifies the six separate violations alleged in the Complaint and refers to the appropriate numbered paragraphs. For each violation, the penalty calculation identifies the civil monetary penalty sought by the Department Staff.

In view of the Respondent's culpability and the actual environmental harm to the tidal wetland that resulted from the Point Road violations, the penalty requested by Staff is appropriate. The Commissioner should assess a total civil monetary penalty of $55,000.00 for the violations that occurred at the 84 Point Road site. The civil penalty, however, should be apportioned as follows. Regarding the filling violations (charges 1, 3, 4 and 5), the Commissioner should consider the Respondent's action of regrading the site with fill material a violation that continued at least from January 1, 1997 through February 5, 1997 (36 days) based on Mr. Tufano's uncontroverted testimony. Pursuant to ECL §71-2503(1), each day that a violation continues may be considered a separate and distinct violation.

Consequently, the Commissioner should assess an initial civil monetary penalty of $10,000 for the fill violation that began on January 1, 1997. The Commissioner should assess an additional daily civil monetary penalty of $26,000.00, which should be divided evenly over the remaining 35-day period that violation continued (i.e., from January 2, 1997 through February 5, 1997), an additional daily penalty of $742.86 per day. The total civil monetary penalty of $36,000 for the continuing fill violations at the Point Road site reflects the culpable nature of the Respondent's actions, the actual environmental harm that resulted from this violation, and the continuous nature of the violation.

The next violation relates to the solid waste discarded on the 84 Point Road site. The Commissioner should assess the maximum civil monetary penalty of $10,000.00 for this violation, given the culpable nature of the Respondent's action and the presumptive incompatibility of disposing solid waste in the adjacent area of a tidal wetland.

Finally, the Commissioner should assess a civil monetary penalty of $10,000.00 for the violation associated with installation of the septic system. Although this activity is presumptively compatible, the culpable nature of the Respondent's actions requires a substantial civil penalty. As explained above, the Department Staff had already served the Respondent Tomaino with the September 26, 1996 Complaint concerning the 33 Peconic Trail site before the Respondent installed the septic system at the 84 Point Road site. Consequently, the Respondent had become aware of the tidal wetland regulations and their likely applicability to his 84 Point Road property. Nonetheless, he knowingly and wilfully chose to disregard the regulatory requirements.

For the reasons outlined above, the Commissioner should assess a total civil monetary penalty of $55,000 for the four violations associated with the 84 Point Road site, a total monetary penalty of $96,000.00 for both sites.

B. Restoration and Remediation

ECL §71-2503(1) states, in pertinent part, that the Commissioner has the power "to direct the violator ... to restore the affected tidal wetland or area immediately adjacent thereto to its condition prior to the violation, insofar as possible within a reasonable time and under the supervision of the Commissioner."

The Respondent's violations at the 33 Peconic Trail site have adversely impacted the tidal wetland. Consequently, the Department Staff's request for restoration and remediation is appropriate, and should be granted. The Commissioner, therefore, should direct the Respondent to restore the wetland vegetation on the site by requiring the Respondent to develop a planting plan that is acceptable to the Region 1 Department Staff, and then implement the plan under Staff's supervision.

With respect to the 84 Point Road site, the Respondent's violations also have adversely impacted the tidal wetland. Consequently, the Department Staff's request for restoration and remediation is appropriate, and should be granted, including, but not be limited to the following: First, the Commissioner should direct the Respondent to remove the solid waste, described as tree trunks and construction lumber, from the site to an approved solid waste management facility. Secondly, the Commissioner should direct the Respondent to submit a permit application to Staff for review, describing the design and installation of the septic system or in the alternative, provide proof that the Suffolk County Department of Health has approved the design and location of the septic system. Upon Staff's review of the filings, Staff may in their discretion, direct the Respondent to relocate the septic system.

CONCLUSIONS

  1. The Respondent's property at 33 Peconic Trail is located within and adjacent to an inventoried tidal wetland. In August 1994, May 1995, and August 1996, the Respondent Tomaino undertook regulated activities in the tidal wetland. These activities included clearing wetland vegetation from the wetland on three separate occasions, disposing of the cut vegetation in another area of the tidal wetland, planting a lawn, and reconstructing a retaining wall. The Respondent did not have any Departmental tidal wetlands permit that authorized any of these regulated activities. By undertaking these regulated activities in the tidal wetland without the necessary permit, the Respondent violated ECL §25-0401(1) and its implementing regulations at 6 NYCRR §661.8.
  2. Since August 1994, the absence of wetland vegetation on the Respondent's property at 33 Peconic Trail has adversely impacted the tidal wetland and the water quality of the intertidal creek associated with the site in the following ways. First, the tidal wetland area on the site can no longer serve as a food source or as habitat for marine animals. In addition, runoff from the upland areas, which is loaded with silt and organic materials, can freely wash into the wetland and intertidal canal. Finally, the altered tidal wetland area cannot offer any protection from storm events. Therefore, erosion of the site will continue.
  3. Replanting the 33 Peconic Trail site with appropriate wetland species would restore the tidal wetlands on the site to their pre-August 1994 condition. In addition, a dense area of beach grass planted landward of the retaining wall, in the adjacent area of the site, would buffer the tidal wetlands on the site. Over a five-year period, these plantings should restore the tidal wetland benefits that have been lost and impaired by the Respondent's actions.
  4. The Peconic Trail site allegation that the Respondent caused the application of herbicides on tidal wetland vegetation in the tidal wetland and its adjacent area on or before August 9, 1996, should be dismissed.
  5. The Respondent's property at 84 Point Road is adjacent to an inventoried tidal wetland. From at least December 1996 through February 1997, the Respondent Tomaino undertook regulated activities in the adjacent area that included filling several different areas of the site and construction of an access road (a continuing violation beginning in December 1996, continuing through February 5, 1997), discarding solid waste, and installing a new septic system. The Respondent did not have a Departmental tidal wetlands permit that authorized any of these regulated activities. By undertaking these regulated activities in the adjacent area of a tidal wetland without the required permit, the Respondent has violated ECL §25-0401(1) and 6 NYCRR §661.8.
  6. The Point Road site allegation that the Respondent cleared wetland vegetation from the adjacent area of a tidal wetland should be dismissed. However, the environmental harm to the tidal wetland that occurred as a result of this activity is an aggravating factor to be considered in determining an appropriate civil penalty for the Point Road site fill violations that have been proven.
  7. The fill on the 84 Point Road site has buried and damaged previously existing upland vegetation that had been growing in the adjacent area. The lack of vegetation in this altered adjacent area prevents the adjacent area from acting as a buffer to the tidal wetland. Consequently, runoff loaded with silt and organic materials from the upland areas can freely wash into the wetland.
  8. Actual environmental harm resulting from the Respondent's unpermitted activities and the Respondent's culpable mental state are aggravating circumstances that warrant the assessment of substantial civil penalties for these violations. Furthermore, restoration and remediation of the two sites is necessary given the actual environmental harm that resulted from these violations.

RECOMMENDATIONS

  1. The Commissioner should conclude that the Respondent's unpermitted actions in the tidal wetland at 33 Peconic Trail in August 1994, May 1995, and August 1996 resulted in six separate violations of ECL §25-0401(1) and 6 NYCRR §661.8 as described herein above.
  2. Furthermore, the Commissioner should conclude that the Respondent's unpermitted actions in the adjacent area of the tidal wetland associated with 84 Point Road from December 1996 to February 1997 resulted in three separate violations of ECL §25-0401(1) and 6 NYCRR §661.8, including the continuing fill violation that subsumes four separate charges alleged by Staff.
  3. Based on the discussion provided above (IV. Penalties), the Commissioner should assess a civil monetary penalty of Forty One Thousand ($41,000.00) Dollars for the Peconic Trail site violations and a civil monetary penalty of Fifty Five Thousand ($55,000.00) Dollars for the Point Road site violations, a total civil monetary penalty of Ninety Six Thousand ($96,000.00) Dollars.
  4. Finally, the Commissioner should direct that the Respondent restore and remediate the two sites within sixty (60) days of the date of service of the Commissioner's Order upon the Respondent. Restoration and remediation of the two sites should occur pursuant to a plan approved by the Department's Bureau of Marine Habitat Protection, as follows:
    1. The Peconic Trail site: The restoration plan should include, but not be limited to, the removal of grass and the dead and decaying organic material seaward of the wall and for the planting of proper high marsh species in its place. The proper high marsh species are Iva frutescens and Baccharis halimifolia that need to be planted in densities of three foot centers and Spartina patens which need to be planted on densities of 12 inch centers. An upland vegetated buffer zone also needs to be established landward of the wall of dense vegetation of native, non-fertilizer dependent species with shrubs being planted on three foot centers and beach grass on 12 to 18 inch centers. Some plantings of Spartina alterniflora in the intertidal marsh area are also necessary.
    2. The Point Road site: The restoration plan should include, but not be limited to the removal of the fill and debris from the site, revegetation of the wetland and, if Staff deems appropriate, the relocation of the septic system. Regarding the septic system, within thirty (30) days of the date of service of the Commissioner's Order upon the Respondent, the Respondent should be required to submit a permit application to Staff for review, describing the design and installation of the septic system or in the alternative, provide proof that the Suffolk County Department of Health has approved the design and location of the septic system.

Attachments:

APPENDIX A Detailed Proceedings (5 pages)
APPENDIX B Witness List (1 page)
APPENDIX C Staff's Penalty Calculation (3 pages)
33 Peconic Trail Site
NYSDEC File No.: R1-5877-96-09
APPENDIX D Staff's Penalty Calculation (3 pages)
84 Point Road Site
NYSDEC File No.: R1-5909-97-02

APPENDIX A

Appendix A
Detailed Description of the Proceedings
In the Matter of Santino Tomaino
DEC Case Nos.: R1-5909-97-02 and R1-5877-96-09

This Hearing Report addresses two separate tidal wetland enforcement actions [ECL Article 25] that involve the same Respondent, Santino Tomaino. The Department Staff initiated the first action with a Notice of Hearing and Complaint dated September 26, 1996, and then served an Amended Complaint dated February 12, 1997. With respect to the second enforcement action, the Department Staff duly served the Respondent with a Cease and Desist Order [ECL §71-2503] dated February 12, 1997. Subsequently, the Department Staff served the Respondent with a Notice of Hearing and Complaint dated February 19, 1997 that alleged the same violations originally stated in the February 12, 1997 Cease and Desist Order.

An administrative hearing to consider the violations alleged in both Complaints was the subject of a calendar call held on March 20, 1997. After adjournments duly taken to give the Parties an opportunity to settle the captioned matters, a consolidated administrative enforcement hearing was set to commence on October 10, 1997.

Two or three days before the October 10, 1997 hearing was to begin, the Parties informed me that a settlement had been reached, and that the parties would sign the Consent Order on October 9, 1997. On that date, however, the Respondent refused to sign the Consent Order.

On October 10, 1997 minutes before the hearing was about to begin, I received a letter of the same date from the Respondent's attorney, Michael G. Walsh, Esq., Water Mill, NY. The letter indicated that Mr. Walsh had withdrawn his representation of the Respondent and had been discharged from the case. The Respondent Tomaino appeared at the October 10, 1997 hearing pro se, and requested a 120-day adjournment to obtain new legal counsel. ALJ O'Connell, then presiding, rescheduled the hearing for October 28, 1997 to allow the Respondent time to retain counsel.

On October 28, 1997, the Respondent Santino Tomaino appeared without any legal counsel and requested a further adjournment. ALJ O'Connell questioned the Respondent at length about his efforts to obtain new legal counsel. The Respondent explained that he telephoned the Nassau County chapter of the American Civil Liberties Union on either October 12 or 13, 1997. Then, on about October 14, 1997, the Respondent called two attorneys. One was named Ed Gould, who, according to the Respondent, said that he could not help the Respondent. With respect to the second attorney, the Respondent could only recall his first name, Robert. The Respondent stated that when he spoke with the second attorney (Robert), the attorney explained that he was leaving for a two-week trip to Italy, and would be returning at the end of October 1997. According to the Respondent Tomaino, the second attorney said that he would review the Respondent's case upon his return from Italy, and would then decide if he would represent the Respondent in this matter.

After considering the Respondent's description of efforts to retain new counsel, ALJ O'Connell concluded that the Respondent had not diligently attempted to retain new legal counsel. Over the Respondent's objection, ALJ O'Connell ruled that the hearing would go forward as scheduled. The Department Staff agreed to present its direct case with respect to the two sites, and to adjourn the hearing at the conclusion of Staff's direct case, to provide the Respondent an additional opportunity to obtain the services of a new attorney. In addition, ALJ O'Connell allowed the Respondent to reserve his right to cross-examine the Department Staff's witnesses until the hearing reconvened. The hearing, therefore, commenced on October 28, 1997 and continued October 29, 1987.

By letter dated November 26, 1997, Robert Accomando, Esq., Melville, NY, filed a notice of appearance as the Respondent's legal counsel in this consolidated hearing. By motion dated January 20, 1998, the Respondent moved to suppress most of the evidence offered by the Department Staff during the October 1997 hearing. According to the Respondent's papers, the Department Staff engaged in warrantless searches of his properties in violation of the Fourth Amendment to the US Constitution, and Article 1, Section 12 of the N.Y.S. Constitution.

In a ruling dated February 5, 1998, ALJ O'Connell denied the Respondent's motion to suppress. In the ruling, ALJ O'Connell noted that constitutional claims must be submitted to a court of appropriate jurisdiction. But, ALJ O'Connell also stated that the Commissioner may decide to exclude evidence if he concludes from his own review of the record that evidence is tainted or was gathered unfairly. ALJ O'Connell explained in the ruling that when the hearing reconvened, the parties would have an opportunity to develop the record fully on the circumstances surrounding each of the Department Staff's inspections of the Respondent's two properties, for the Commissioner's consideration.

Subsequently, the Respondent petitioned the Supreme Court, Suffolk County, pursuant to Civil Practice Law and Rules (CPLR) Article 78 to review the February 5, 1998 ruling. The court granted the Respondent's request for an Order to Show Cause that stayed the DEC administrative enforcement proceedings while the court considered the Respondent's CPLR Article 78 Petition. In a Decision and Judgment dated March 17, 1998, the court dismissed the Respondent's petition, and vacated the Order to Show Cause, thereby lifting the stay on the administrative proceedings.

By letters dated April 14, 1998 and May 5, 1998, ALJ O'Connell directed the Parties to consult with each other to determine a schedule for the continuation of the proceedings commenced in October 1997. In a letter dated May 7, however, Mr. Accomando, withdrew as the Respondent's counsel. According to Mr. Accomando, the Respondent's account was in arrears since February 1998. Mr. Accomando provided a copy of the agreement signed by Messrs. Tomaino and Accomando that provided for Mr. Accomando's withdrawal if the Respondent's account was in arrears for more than 30 days.

By letter dated May 7, 1998, ALJ O'Connell informed the parties that the administrative hearing would continue June 22, 1998 at the Department's Region 1 Offices, and that ALJ O'Connell would not consider any requests for adjournments. However, on June 19, 1998, the Respondent retained new counsel, John J. Juliano, Esq., Hillside Building, 39 Doyle Court, East Northport, New York. Consequently, the hearing was adjourned again to allow counsel time to familiarize himself with the record. Mr. Juliano stated that he would represent the Respondent to the conclusion of the administrative hearing (unless discharged by the Respondent), and he continues to do so. With the consent of Staff, the hearing was adjourned, and was continued on August 3, 1998, August 4, 1998, August 5, 1998 and November 4, 1998. In March 1999, by consent of the parties, the hearing was scheduled to reconvene on April 27, 1999 through April 29, 1999.

However, on April 22, 1999, due to the unavailability of ALJ O'Connell, who was engaged in another matter, this enforcement action was transferred to ALJ Kevin J. Casutto. ALJ Casutto presided over the remainder of the hearing, on April 27 and 28, 1999 and June 28, 29 and 30, 1999.

On October 29, 1997 Staff presented the direct testimony of Peter Normoyle, employee of Tufano Asphalt Paving Co., Inc. Since the Respondent appeared pro se on that date, the Respondent's cross examination of Staff's witnesses, including Mr. Normoyle, was reserved for a later date. ALJ O'Connell thereby allowed the Respondent an additional opportunity to retain counsel, as further described, above. However, by June 1999, Mr. Normoyle was no longer employed by Tufano Asphalt Paving Co., Inc. Due to his relocation to the State of Florida, he was unavailable to appear for cross examination. Therefore, on June 29, 1999, the direct testimony of Peter Normoyle was redacted along with any exhibits admitted into evidence through Mr. Normoyle.

In lieu of Mr. Normoyle's testimony, Staff was granted permission to present the testimony of Edward R. Tufano, Jr., Tufano Asphalt Paving Co., Inc. Mr. Tufano is an owner and manager of the corporation.

On June 30, 1999, during the Respondent's direct case, the Respondent offered the testimony of Eugene F. Martin, Ph.D. (Geologic and Organic Chemistry) as a proposed tidal wetlands expert. Dr. Martin is the proprietor of Martin Geochemistry, Inc., Kew Gardens, New York. Dr. Martin has earned a B.S. degree in Chemistry, an M.S. in Organic Chemistry and a Ph.D. in Chemistry (organic polymer chemistry and geological chemistry). Dr. Martin also has conducted postdoctoral research at Albert Einstein College of Medicine regarding the biochemistry of sulfates. He is an adjunct associate professor of chemistry at St. Johns University (teaching undergraduate courses) and an adjunct assistant professor of chemistry at Queensborough Community College.

Although Dr. Martin has had some professional experience in environmental remediation, I ruled that Dr. Martin is not qualified as an expert in tidal wetlands. His substantive testimony was precluded. On voir dire, Dr. Martin conceded that his formal education did not include any course work in marine science, marine ecology, marine biology, limnology, oceanography, structural engineering or wildlife management. Dr. Martin was not able to describe accurately a "high marsh" tidal wetland or an "intertidal marsh" tidal wetland, nor was he able to identify plant species that normally grow in a high marsh or intertidal marsh wetland. Further, although he has had professional experience in geochemical environmental remediation, he has not been certified as a wetlands scientist by any professional organization. Only one environmental project in which Dr. Martin participated involved a tidal wetland delineation.

Therefore, although Dr. Martin may be well qualified in the areas of organic polymer chemistry and geological chemistry, he did not possess the necessary education, training or experience in tidal wetlands delineation or technical or scientific knowledge of wetlands sufficient to establish expertise (and present expert opinion testimony) on those subjects. See, generally, Evidence in New York State and Federal Courts, R. Barker and V. Alexander, West's Practice Law Series (1996), §702.1(e).

On June 30, 1999, Mr. Juliano requested an extension of time in which to retain and offer another proposed expert witness. The record was held open briefly for this purpose, but the Respondent failed to make a timely offer.

Receipt of final transcripts was delayed due to the extended illness of the stenographer. Final transcripts were received on October 5, 1999. Upon the timely receipt of the parties' closing briefs, the hearing record closed on November 29, 1999.

APPENDIX B

Appendix B - Witness List
In the Matter of Santino Tomaino
DEC Case Nos.: R1-5909-97-02 and R1-5877-96-09

FOR DEPARTMENT STAFF:

Charles T. Hamilton
Regional Supervisor
Office of Natural Resourses
NYS DEC Region 1

Lawrence Pasciutti
Senior Marine Resource Technician
Bureau of Marine Habitat Protection
NYS DEC Region 1

Louis Chiarella
National Marine Fisheries Service
One Blackburn Drive,
Gloucester, Massachusetts
formerly, Regional Manager
[Bureau of Marine Habitat Prot
ection NYSDEC Region 1]

Peter Normoyle
Tufano Asphalt Paving Co., Inc.
Quogue, New York

Edward Tufano
Tufano Asphalt Paving Co., Inc.
Quogue, New York

FOR THE RESPONDENT:

Saintino Tomaino
33 Peconic Trail
Flanders, New York

Eugene F. Martin, Ph.D.
Martin Geochemistry
160 Mastic Boulevard, East
Shirley, New York

APPENDIX C

APPENDIX D

1 See, 6 NYCRR §701.10, defining the "SA" water classification.

2 See, 6 NYCRR §661.4(hh)(6), defining "formerly connected tidal wetlands".

3 Camara v Municipal Ct., 387 US 523; See v City of Seattle, 387 US 541; Katz v United States, 389 US 347; Colonnade Corp. v United States, 397 US 72; United States v Biswell, 406 US 311, 316; Marshall v Barlow's, Inc., 436 US 307; and New York v Berger, 482 US 691.

4 However, as discussed below, I find that charge 5 (alleged application of herbicides) is not sustained.

5 Staff subsequently filed an Amended Complaint dated February 13, 1997, but did not provide a revised penalty calculation with the Amended Complaint.

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