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Tubridy, Michael - Ruling, January 5, 2000

Ruling, January 5, 2000

STATE OF NEW YORK :DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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 by

RULING ON MOTION
FOR ORDER WITHOUT
HEARING

Case No. R2-0428-99-03

MICHAEL TUBRIDY,

Respondent

January 5, 2000

Summary

As discussed below, the Staff of the Department of Environmental Conservation (the "Department Staff") moved for an order without hearing against Michael Tubridy for violations of the tidal wetland and protection of waters laws and regulations which allegedly occurred at a site in Queens County. The motion for order without hearing is granted with regard to the second and third causes of action (storage of construction machinery within the tidal wetland and failure to submit notice of filing of a deed covenant as required by permit). The motion is denied with regard to the first cause of action (failure to install erosion controls) and a hearing will be scheduled on the first cause of action. An Order regarding all three causes of action will be issued by the Commissioner at the conclusion of the hearing.

Proceedings

The Department Staff moved 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 alleges 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 states that no material issue of fact exists that requires a hearing. The motion seeks 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, dated September 22, 1999, 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.

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 place 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.

Discussion of Ruling

6 NYCRR Section 622.12 governs motions for order without hearing in Department of Environmental Conservation enforcement hearings. Among other provisions, this regulation states that, "A contested motion for order without hearing will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgement under the CPLR in favor of any party.... Upon determining that the motion should be granted, in whole or in part, the ALJ will prepare a report and submit it to the commissioner pursuant to section 622.18 of this Part." (622.12(d)).

This section further provides that, "The motion must be denied with respect to particular causes of action if any party shows the existence of substantive disputes of facts sufficient to require a hearing..." (622.12(e)).

Section 3212 (b) of the Civil Practice Law and Rules provides, in part, that a motion for summary judgment shall be granted, "...if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."

No substantive disputes of fact sufficient to require a hearing have been shown with respect to the second and third causes of action (storage of machinery within the tidal wetland and by failing to submit proof of filing a deed covenant). Although the Respondent stated that he contacted the Department Staff, after having received the notice of violation, and told them that the machine "was presently 30 feet from the area to be bulkheaded," that statement was about the location of the machine on the date of their discussion, not on the date of the alleged violation. The Respondent's correspondence does not contest the observations which the Department Staff witness made regarding the location of the machinery on the date of the alleged violation.

There are, however, disputes of fact concerning the first cause of action (the alleged failure to install erosion controls). These include, but are not limited to, the location of the fill with regard to the bulkhead. In addition, facts are in dispute that would be relevant to the penalty if a violation is found with regard to the first cause of action.

Ruling: The motion for order without hearing is granted with regard to the second cause of action (storage of construction machinery within the tidal wetland) and is granted with regard to the third cause of action (failure to submit notice of filing of deed). The motion for summary order is denied with regard to the first cause of action (failure to install erosion controls) and a hearing will be scheduled regarding the first cause of action.

Certain facts which are relevant to the first cause of action are not in dispute and are deemed to be established for all purposes in the hearing. They are identified in the Findings of Fact below.

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.

Hearing

A hearing will be scheduled to take place at the Department's Region 2 Office regarding the allegations other than the second and third causes of action. I will contact the parties to determine a date for the hearing. Following the hearing, an Order regarding all three causes of action would be issued pursuant to 6 NYCRR Part 622.

/s/
Susan J. DuBois
Administrative Law Judge

Albany, New York
January 5, 2000

TO: Udo Drescher, Esq.
Michael Tubridy

cc: James E. Mulvaney, Esq.

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