![]() Moreover, if a respondent believes that a copy of the freshwater wetlands map is necessary to mount its defense, the respondent is free to introduce a copy of the map into the record. That testimony was not refuted by respondents.Īlthough the inclusion of a copy of the applicable freshwater wetlands map would aid in the development of a complete record, there is no requirement that Department staff must proffer a copy as an exhibit. Here, the testimony of Department staff's expert witness plainly established the method used by the Department to delineate the extent of respondents' infringement into the wetland and adjacent area at the site ( see Hearing Report at 3-4 Tr at 39-47). With regard to the argument that Department staff must enter into evidence the official freshwater wetlands map, or a certified copy of same, there is no basis in the law for such a requirement. I also concur with the ALJ's determination that the post-hearing arguments raised by respondent Orchard are unavailing. Accordingly, the record demonstrates that each respondent violated 6 NYCRR 663.4(d)(20) by depositing fill in freshwater wetland ON-6 and its adjacent area at the site without a permit or other authorization from the Department. Respondents did not have authorization from the Department to deposit fill in the wetland or its adjacent area at the site (Hearing Report at 4 Tr at 69-70). 1, 2016, ¶ 5 DEC Exhibit 58 DEC Exhibit 62, attached Exhibit A ). ![]() Respondent Giacomelli owns a portion of the site and sought to extend his property by allowing fill to be placed on the site, and respondents Orchard and Stewart Logging both placed large amounts of fill within wetland ON-6 and its adjacent area at the site ( see Hearing Report at 2-4 Transcript at 106-110 DEC Exhibit 5, attached affidavit of Ronald Stewart, sworn to Feb. I concur with the ALJ's conclusion that Department staff met its burden of proof to establish the liability of each respondent. Scott Bassinson who prepared the attached hearing report (Hearing Report), which I adopt as my decision in this matter, subject to my comments below. The matter was assigned to Administrative Law Judge (ALJ) D. Staff requests a penalty of $110,000, as well as restoration of the site. Freshwater wetland ON-6 is designated as a Class I freshwater wetland, which is the most protective wetland classification.īy its second amended complaint dated Aug(Complaint), Department staff alleges one cause of action: that respondents violated 6 NYCRR 663.4(d)(20) by depositing fill in freshwater wetland ON-6 and its adjacent area without a permit from the Department. The site includes a portion of New York State regulated freshwater wetland ON-6 and the corresponding regulated adjacent area. One of the parcels is owned by respondent Giacomelli and the other parcel is owned by Norfolk Southern Railway Company. (Stewart Logging), violated the New York State freshwater wetlands law and regulations by placing fill on two adjacent parcels (site) located behind 572 Main Street, Oneonta, Otsego County. This administrative enforcement proceeding concerns allegations by staff of the Department of Environmental Conservation (DEC or Department) that respondents Alexandro Giacomelli, Orchard Earth & Pipe Corp. ![]() Section 663.4(d)(20) of Title 6 of the Official Compilation ofĬodes, Rules and Regulations of the State of New York (6 NYCRR),ĪLEXANDRO GIACOMELLI, ORCHARD EARTH & PIPE CORP., New York State Environmental Conservation Law (ECL) and In the Matter of the Alleged Violations of Article 24 of the Giacomelli, Alexandro Orchard Earth & Pipe Corp and Stewart Logging, Inc.
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