44-100 (6) Rocky Hill Rd WETLANDS EnforcementMITT ROMNEY
Governor
KERRY HEALEY
Lieutenant Governor
COMMONWEALTH OF MASSACHUSETTS V 7 v
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
WESTERN REGIONAL OFFICE
436 Dwight Street • Springfield, Massachusetts 01103 • (413) 784-1100 • FAX (413) 784-1149
ELLEN ROY HERZFELDER
Secretary
ROBERT W. GOLLEDGE, Jr.
Commissioner
Timothy Zielinski, President
' Zielinski Brothers, Inc.
218 Shoemaker Lane
Agawam, Massachusetts 01001 RE: Violation of Massachusetts Wetlands Protection Act
\ Parcels 100, 101, and 102 Rocky Hill Road,
Northampton
NOTICE OF ENFORCEMENT CONFERENCE
THIS IS AN IMPORTANT NOTICE. FAIURE TO RESPOND TO THIS NOTICE COULD
RESULT IN SERIOUS LEGAL CONSEQUENCES.
Dear Mr. Zielinski:
On May 26,2004 you met with personnel from the Massachusetts Department of Environmental
Protection (hereinafter the Department) at the above -referenced site at the request of the
Northampton Conservation Commission. At this inspection, the Department confirmed that
activities (as defined at 310 CMR 10.04 Activity) conducted by your company took place within
Department jurisdiction and without a valid Final Order of Conditions as required at 310 CMR
10.05(6). This noncompliance included alteration of Areas Subject to Protection Under the
Massachusetts Wetlands Protection Act, MGL c. 131, § 40, and the regulations promulgated
thereunder at 310 CMR 10.00.
The Department intends to take enforcement action in response to this noncompliance. Possible
actions include issuance by the Department of an Enforcement Order, a civil administrative
penalty, and/or referral of the matter to the Attorney General's Office for civil or criminal
prosecution. Prior to proceeding with the enforcement action, the Department requests that you
attend an enforcement conference at the below referenced location and on the following date and
time:
LOCATION: Commonwealth of Massachusetts
Department of Environmental Protection
Western Regional Office, Springfield State Office Building
436 Dwight Street
Springfield, Massachusetts
This information is available in alternate format. Call Donald M. Gomes, ADA Coordinator at 617-556-1057. TDD Service -1-800.298-2207.
DEP on the World Wide Web: http://www.mass.gov/dep
c Printed on Recycled Paper
SITE PLAN U
APPROX. SCALE: V = 200'
DTP -1 TEST PIT
-
OPERC-I PERC TEST No. 1
PROPERTY LINEAPP O /i
WELL ( R X• LOCATION) II
—99 . EXISTING CONTOUR (REL. TO SITE B,M_) / O
98 PROPOSED CONTOUR I'
STREAM/WETLANDS BOUNDARY 66� J
c - BURIED WATERLINE (APPROX. LOCATION)
_ BURIED ELECTRIC LINE (APPROX. LOCATION)
E (ALOCATION) RAFT
° BURIED GAS LINPPROX. LO
—'"'— FENCE RpGK 1
LOCO ROCK WALL \ I( 1
OPEN/LAWN
DRAFT
\> i WOODS /' I OPEN/LAWN
OPEN/LAWN
A70
C� O
�. •�
11 ./ WETLAND Ra o.EacMaro I WETLAND /
WOODS
I�. l I� / •/ �// / CoQ
OPEN/FIELD
FIELD I i— / %� . ,�L •V/
DRAFT
NOTES: PRELIMINARY SITE PLAN - \
1. PLAN BASED 'ON 'PLAN OF LAND IN NORTHAMPTON, MA PREPARED FOR JOHN &MITCHELL ZIELINSKI-,
BY SMITH ASSOC. REV. 6/20/83, SCALE 1'=50'; March, 2004
MassGIS OTHOPHOTO 4105894
ROCKY HILL ROAD (Rte 66), NORTHAMPTON, MA
FOR TIM ZIELINSKI & RICHARD FINN
NEWMAN ENVIRONMENTAL
ENGINERING
P -O- BOX 395, 21 GUARD ROAD, WORTHINGTON, MA 01098
TEL: 413-238-5383
FAX: 413-238-4278
ioo
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS D
DEPARTMENT OF ENVIRONMENTAL PROTECTION
WESTERN REGIONAL OFFICE
' + 436 Dwight Street • Springfield, Massachusetts 01103 • (413) 784-1100 FAX (413) 784-1149
ELLEN ROY HERZFELDER
MITT ROMNEY Secretary
Governor
ROBERT W. GOLLEDGE, Jr.
KERRY HEALEY Commissioner
Lieutenant Governor
Timothy Zielinski, President C�
Zielinski Brothers, Incorporated
218 Shoemaker Lane
Agawam, Massachusetts 01001
RE: Violation of the Massachusetts Wetlands Protection Act
ACOP -WE -04-6W007
Parcels 100, 101, and 102, Rocky Hill Road,
Northampton
Dear Mr. Zielinski:
Enclosed please find a signed Administrative lar attention Order
the landmark dates, specific
W
ACOP -E -04-6W007. Please pay part
performance requirements set forth within the document.
Should you have any questions relative to this matter, please contact David Foulis at 413-755-
2154 or the undersigned at this office.
Petlands
cCollum
Program Chief
P:/dfoulis/WERO WWP Templates/Enforcement & Compliance/ACOP-WE-04-6W007 Letter 013105
Certified Mail # 7004 0550 0000 4600 8591, return receipt requested.
Enclosures
•f
cc: Steve Ellis DEP-WERO
Northampton Conservation Commission ;j
Gomes, ADA Coordinator at
v/de 556-1057. TDD Service : 1.800-298-2207.
This information is available in alternate format. Call Donald M.
DEP on the World Wide Web. http://Www.mass.go p
0 Printed on Recycled Paper
2
II. JURISDICTION
1 The Department is responsible for the implementation and enforcement of the
Massachusetts Wetlands Protection Act, G.L. c. 131, § 40, and the regulations
promulgated thereunder at 310 CMR 10.00 et seq.; and the Massachusetts Clean
Waters Act, G.L. c. 21, §§ 26-53 inclusive, and the regulations promulgated
thereunder at 314 CMR 1.00 — 12.00 et seq. The Department has authority under
G.L. c. 21A, §16, and the regulations promulgated thereunder at 310 CMR 5.00,
to assess civil administrative penalties to persons in noncompliance with its
regulations.
III. STATEMENT OF FACTS AND LAW
1 On May 24, 2004 a prospective developer of the site contacted the Northampton
n ("NCC"). Said individual reported concerns about
Conservation Commissio
possible violations of the Massachusetts Wetlands Protection Act.
2. On that same day, the Conservation Agent for the NCC, Gloria McPherson,
conducted an inspection of the site. The Agent confirmed that jurisdictional
resource areas had been recently altered on site without an Order of Conditions.
The Agent then contacted the Department's Western Region Wetlands Program
for enforcement assistance.
3, On May 25, 2004 Department staff met with the Conservation Agent, members of
the NCC, and the Respondent. Department staff confirmed the findings of the
NCC on that date.
4. On that same date, the Conservation Agent hand -delivered an Enforcement Order
(`BO") to the Respondent, issued per the NCC's authority at 310 CMR
4
g. The acts and omissions set forth above are violations of:
A. G.L. c. 131, § 40 and 310 CMR 10.00;
a. 310 CMR 10.05(4)(a);
b. 310 CMR 10.54(4);
C. 310 CMR 10.55(4).
10. The acts and omissions described above are willful and not a result of error.
IV. DISPOSTION AND ORDER
en place between representatives of the
1.
As a result of discussions which have tak
e artment and Respondent, and without adjudication of any fact or law set forth
Dp
above, the parties have agreed to enter into this Order because it is in their own
interests, and in the public interest, to proceed promptly with the actions called for
herein rather than expend additional time and resources litigating the allegations
set forth above.
2.
For the reasons set forth above, the Department hereby issues, and Respondent
ereb consents to, and admits that the Department has jurisdiction to issue, this
h y
3.
Order.
dent and on its officers, employees, agents,
This Order shall be binding on Respon
contractors, successors, heirs and assigns. Respondent shall not violate this Order
and shall not allow its officers, employees, agents, contractors, successors, heirs,
or assi ns to violate this Order. Violation of .this Order by any of the foregoing
g
persons or entities shall constitute violation of this Order by Respondent.
this Order to each successor and/or assign.
Respondent shall provide a copy of
3
D. The Respondent shall cause the replacement area to be fully constructed,
planted, and stabilized per the Plan by no later than close of business on
Wednesday, November 30, 2005, unless a documented unforeseen
occurrence legitimately renders this deadline impossible to achieve, in
which case the replacement area shall be fully constructed, planted, and
stabilized by a date that is mutually acceptable to both parties, but which
in any event is no later than the last day of March in 2006.
E. The Respondent shall cause the environmental consultant to monitor the
"replacement area" for a period of at least two (2) consecutive growing
seasons beginning on the first full growing season after construction of the
"replacement area" per the detailed instructions in the attached
"Addendum to Administrative Consent Order".
5. All submittals, (other than penalty payments), required by this Consent Order
shall be made in writing to:
David Foulis
Massachusetts Department of Environmental Protection
Western Region
436 Dwight Street
Springfield, MA 01103
Prior to any type of transfer of ownership of the site, the Respondent shall obtain
6.
a legally binding access agreement that provides the Respondent access to the site
ing the restoration required hereunder. Such agreement
for the purpose of perform
cess to the site for the purpose of determining
shall also provide the Department ac
compliance with this agreement. All such access agreements shall be binding on
P.,
Commonwealth of Massachusetts
Department of Environmental Protection
Commonwealth Master Lockbox
P.O. Box 3982
Boston, Massachusetts 02241-3982
The Company shall deliver a copy of the payment to:
Deputy Regional Director for the Bureau
fResou ce Protection
Massachusetts Department of Environmental
Western Regional Office
436 Dwight Street
Springfield, MA 01103
10. In
the event Respondent fails to pay, in full, any civil administrative penalty due
under this Order in the manner and form required by, and the date due by, this
Res ondent shall pay to the Commonwealth three (3) times the amount of
Order, P
he civil administrative penalty, together with costs, plus interest on the balance
t
due from the time such penalty became due and reasonable attorneys' fees,
including all costs and reasonable attorneys' fees incurred in the collection
thereof. The rate of interest shall be the rate set forth by G.L. c. 231, § 6C.
Respondent shall not be deemed to have returned to compliance until Respondent
all enalties due under this Order and performs the actions set forth in this
pays P
Order.
IONAL TERMS AND CONDITIONS
V. ADDIT
1.
This Order shall not be construed as, or operate as, relieving Respondent or any
other person of the necessity of complying with all applicable federal, state and
local laws and regulations.
2•
Nothing in this Consent Order shall be construed or operate as barring,
g ht of
diminishing, adjudicating, or in any way affecting any legal or equitable rig
io
void this Order in the
however, that the Department shall have the discretion to
event of any such invalidity.
7. This Consent Order may be executed in two or more counterparts, each of which
be deemed an original, but all of which together shall constitute one and the
shall
same instrument.
[No further text appears on this page.]
Western Regional Office, Bureau of Resource Protection,
Wetlands Program
Addendum to Administrative Consent Order
Data Required for Proposed Bordering Vegetated Wetland Replacement Areas
"Massachusetts Inland CMRand Replicatio0.5 (4)(b)lnthrough 7.
Guidelines"(DEP 2002)
and 310
articular
The Respondent shall, at a minimum, provide the following information per the "Massachusetts Inland
Wetland Replication Guidelines" (DEP 2002) and the Western e detailedegionor spec nds fi than that ogram. If a called for
We p
piece or kind of information. requested in this Addendum is
Massachusetts Inland Wetland Replication Guidelines", the applicant shall defer to the Addendum and
m " Mass
supply the requested information per the Addendum.
Parcel and Project Data
roposed Bordering etated Wetland (hereinafter BVW)
Owner of parcel on which p
replacement area [see 310 CMR 10.55(4)(b)] will be located
Assessor's map and parcel identifying codes
acement area Land use and land cover of proposed BVWreplacement area site and justification
Name and credentials of designer of BVW p
• Name and credentials of construction contractors responsible for building BVW replacement
area, and designated foreperson
onmental compliance monitor" appointed to monitor B
VW
Name and credentials of "envir
replacement area during course of permit life
Data for Lost Bordering Vegetated Wetland (data from adjacent portion of BVW acceptable)
Wetland H drolo of Lost BVW
• Hydrogeomorphic setting of lost BVW ime Modifier (Northeast Region version)
• National Wetlands Inventory Water Reg
• Inventory and describe all supportive surface evidence
o Depth and distribution of surface inundation
o Water marks
o Drift lines
o Water -borne sediment deposits
o Water -stained or silt -stained leaves
o Surface scoured areas
o Wetland drainage patterns
o Windthrown trees with root masses exposed
o Morphological plant adaptations
urfac tur idence for analysis of long-term h drolo
Inventory and describe all supportive sub -s
o Distinct or prominent redoximorphic features
o Oxidized rhizospheres
o Shallow rooting of hydrophytes
o Soil saturation
rtive collateral evidence for analysis of long-term h dro 0
Inventory and describe suppo
o Interpretation of aerial photograph
o US Soil Conservation Service county soil survey soil series descriptions (hydrolo�c data
within series descriptions and elsewhere)
o National Wetlands Inventory alpha -numeric classification
Data for Proposed Bordering Vegetated Wetland Replacement Area
proposed Hydrolog of BVW Replace nt Area
• Supportive sub -surface evidence
ent
o Depth to distinct or prominredoximorphic features and description
o Depth to observed soil saturation
arent water table at
o Predicted periodicity and d ratio any yfree water encountered
depth
o Color photographs of soilprofile
Proposed Soil Structure of BVW Re lacement Area
• Methodology for translocation of "donor" soil
• List, quantity, and source of proposed soil amendments
• Justification for amendment with off-site materials, if any
o Clean leaf compost preferred
o Peat moss and peat moss by-products discouraged
o Wood chips disallowed
• s to the qualities of the C Horizon for proper root
Physical analysis by a qualified professional a
development of hydrophytes
h tic Plant Community in BVW Replacement Are
Pro -posed H dro a
• composition of BVW replacement area upon
Proposed structural and plant community
maturation, and justification
Proposed floral composition of BVW replacement area upon completion of construction
o Species list by:
■ Scientific name [see Sorrie and Somers 19991
■ Horticultural source/condition
■ Total number of units per species
■ Planting schedule
■ Post -planting care by species, and responsible party
Sit_ e Plan
• Stamped by a Professional Land Surveyor or Registered Professional Engineer
• Scale of 1 inch = 30 feet unless alternate scale is approved
• Contour interval of one (1) foot
• All data collection points/transects geographically portrayed
• Proposed boundary of BVW replacement area clearly demarcated
• Areal extent, as expressed in calculatingentouare feet, of te f BVW rep al ceosed BVW ment creat area
o Methodology forareal ex
• Boundary of extant BVW with surveyed points (flags)
• Location of planted material referenced by:
o Full scientific name
o Number of units
o Type of planting (bare root, potted, transplanted, etc.)
o Source of stock
• Location and extent of seeded areas referenced by:
o Scientific name
o Application rate
o Source of seed
Microtopographic features spatially portrayed
3
ed as such, and if encounteredsa draft eradication/control plan shall be submitted to the
identified August 31 of each year;
Department for approval by
Appendix Gs, and any surficial or
ons of photographs fhes the ng the entire BVW replacement
Color photographs or color reproducti
area, the location of the data collection
PointsReference points should be established and
subsurface evidence of wetland hydrology.
maintained for future photography; of year. Said report shall
in and shall detail how and
An annual written report submitted onitoring the BVW replacement area, y dards specified at
contain all elements required
on-com liance with any General Performance Standard is
to what extent the BVW replacement n ea meets the General Performance Stan
310 CMR 10.55(4)(b)l., 2., and 6. If p
documented, the report shall include a draft "corrective plan of action"
5
o Depressions and/or pools
o Mounds
o Rock fragments, bedrock, woody debris
o Other proposed features
Limit of Work boundary clearly demarcated
Position and type of erosion and sedimentation controls
Long-term protective measures within Buffer Zone
Other Data
• Text describing how the BVW replacement area will meet each of the requirements specified at
310 CMR 10.55(4)(b)1. through 7.
• Cross-section plans
o Depth to excavated surface
o Proposed depth of translocated soils with layer depths
o Predicted vertical range (elevations) of apparent water table
o Predicted duration of saturation/inundation and justification
o Confining layers
• Proximity of chemically treated surfaces within one hundred (100) feet of proposed boundary of
BVW replacement area and mitigative measures
• Proximity of snow disposal areas within one hundred (100) feet of proposed boundary of BVW
replacement area and mitigative measures
• Proximity of point sources of stormwater discharge within one hundred feet of proposed
boundary of BVW replacement area and mitigative measures. Please note that the proposed
discharge of treated stormwater into the BVW "replacement area" may fail the General
Performance Standard at 310 CMR 10.55(4)(b)2.
• Gradient statistics for proposed and/or existing contours within one hundred (100) feet of the
proposed boundary of BVW replacement area
BVW Replacement Area Monitoring
"DEP Bordering Vegetated Wetland (310 CMR 10.55) Delineation Field Data Forms"
• At least one (1) "DEP Bordering Vegetated Wetland (310 CMR 10.55) Delineation Field Data
Form" (Appendix G) for each proposed cover type (distinct structural and community
composition), and no fewer than two (2) Appendix Gs in total for any BVW replacement area up
to 5,000 square feet in areal extent. Only Section I and "Other Indicators of Hydrology" in
Section II need be completed. All plants encountered shall be identified to the species level.
Scientific nomenclature shall follow The Vascular Plants of Massachusetts: A County Checklist
(Sorrie and Somers 1999);
• Data collected on Appendix Gs must be taken during or near peak biomass in early summer;
• This must be repeated for a least two (2) consecutive growing seasons, and then until such time as
the BVW replacement area meets all General Performance Standards at 310 CMR 10.55(4)(b), as
determined by the Department;
• Annual follow-up data collected on Appendix Gs shall be gathered within fourteen (14) calendar
days of the date of the first such data collection
Other Data
• A complete and thorough annual inventory of all vascular plants within the entire BVW
replacement area. Scientific nomenclature shall follow The Vascular Plants of Massachusetts: A
County Checklist (Sorrie and Somers 1999). All non -indigenous species encountered shall be
E
o Government records (if any)
o Previous permits (if any)
Hydric Soil Structure in Lost BVW
• Inventory of non -indigenous vascular plant species within 50 feet of outer perimeter of soil
translocation area
• Profile descriptions
o "Soil Surface", per definition in "Glossary of Terms" of Field Indicators for Identifying
Hydric Soils in New England (NEIWPCC 1998)
o Soil texture for each horizon in profile
o Munsell notation for each horizon in profile
■ Notation for matrix
■ Notation for redoximorphic features
o Soil Morphology
Nodules and Concretions
• Redox concentrations
• Redox depletions
• Gleyed matrix
■ Pore linings, including oxidized rhizospheres
■ Sulfidic materials
• Histosol
■ Histic epipedon
■ Organic streaking
Hydric Soil Indicator status designation from Field Indicators for Identifying Hydric Soils in New
England (NEIWPCC 1998)
Color photographs of soil profile and any free water encountered
Wetland Plant Community in Lost BVW
• A complete and thorough inventory of all vascular species of hydrophytes within the area of
BVW proposed to be filled. Scientific nomenclature shall follow The Vascular Plants of
Massachusetts: A County Checklist (Sorrie and Somers 1999). Each species shall be ranked
through visual estimate as to abundance. A dominance type [see Classification of Wetlands and
Deepwater Habitats of the United States (Cowardin et al 1979)] shall be assigned to each
"vegetative layer" [see "Vegetative Layers" in Delineating Bordering Vegetated Wetlands Under
the Massachusetts Wetlands Protection Act (DEP 1995)];
• Description of structural and community heterogeneity within lost BVW, as expressed through
National Wetlands Inventory alphanumeric codes and annotated color photographs
Abiotic and Biotic Structure in Lost BVW
• Substrate condition (characteristics and distribution)
o Grade
o Microtopography
o Rock fragments and ledge/outcrops
o Unvegetated, unconsolidated substrate
o Dead organic material, including trunks, stumps, logs, branches, etc.
• Areal extent, as expressed in square feet, of the lost BVW
o Methodology for calculating areal extent of lost BVW
2
RATIFICATION
This CONSENT ORDER shall be effective on the date signed by the Department.
Consented To:
I certify that I am duly authorized to enter into this Consent Order on behalf of,
Zielinski Brothers, Incorporated
218 Shoemaker Lane
Agawam, MA 01001
Telephone: (413) 246-7311 (cellular)
By:
Sign
Print Name
dy 321 '321 9
Federal Employer Identification Number
Issued By:
Date: /- 3/- a !K—
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Hereunto duly authorized,
By:
Michael J G s ', Re ional Director
Western Regional Office
436 Dwight Street
Springfield, MA 01103
Telephone: (413) 784-1100
Date: 4
11
the Department (i) to issue any future Order with respect to the subject matter
covered by this Consent Order, or (ii) pursue any claim, action, suit, cause of
action, or demand which the Department may have with respect to the subject
matter covered by this Consent Order, including without limitation any action to
enforce this Consent Order in an administrative, civil or criminal judicial
proceeding.
3. In addition to being an Order, this instrument is also a Notice of Noncompliance
issued pursuant to G.L. c. 21A, §16, and 310 CMR 5.00. The Department
determines, and Respondent agrees, that the deadlines set forth above, constitute
reasonable timeframes for coming into compliance.
4. Respondent hereby waives its right to an adjudicatory hearing before the
Department on, and judicial review of, the issuance and terms of this Order and to
notice of any such rights of review.
5. Respondent agrees to allow the Department, and the Department's employees,
authorized representatives, and contractors, to enter the site at all reasonable times
to inspect the site, and have access to and photocopy records; and verify that
Respondent is satisfying the terms and conditions of this Order and the laws and
regulations administered by the Department.
6. The provisions of this Order are severable, and if any provision of this Order, or
the application thereof, is held invalid, such invalidity shall not affect the validity
of other provisions of this Order, or the application of such other provisions,
which can be given effect without the invalid provision or application; provided,
successors and assigns until the impacted Bordering Vegetated Wetland referred
to in this Order have been restored to the Department's satisfaction.
7. The activities performed pursuant to this Order shall be performed in accordance
with all applicable federal, state and local laws, regulations and approvals.
8. Respondent agrees to the imposition of a civil administrative penalty in the
amount of twenty-six thousand, five -hundred dollars ($26,500) for the violations
identified in the Statement of Facts and Law above. The Department agrees to
suspend sixteen thousand, five -hundred dollars ($16,500) of the penalty if
Respondent complies with all remaining terms and conditions of this Order. If the
Department determines that Respondent has not complied with this Order the
Department may revoke the suspension of the balance of the penalty. If the
Department revokes the suspension, it shall issue a demand letter to Respondent
for the balance of the penalty amount. Respondent shall pay the balance within
thirty (30) days of its receipt of the demand letter. For purposes of the
requirement to pay the penalty balance due, Respondent waives its rights, if any,
to contest or appeal, administratively or judicially, a determination of
noncompliance with this Order or a revocation of the suspension.
9. Respondent shall pay all civil administrative penalties due under this Order by
certified check, cashier's check or money order payable to the Commonwealth of
Massachusetts within thirty (30) calendar days of the effective date of this Order.
Respondent shall clearly print on the face of its payment Respondent 's full name,
the file number appearing on the first page of this Order and Respondent 's
Federal Employer Identification Number, and shall mail it to:
4. To address the violations identified in the Statement of Facts and Law above,
Respondent shall perform the following actions:
A. Within five (5) business days of the receipt of this Order, the Respondent
shall nominate in writing an environmental consultant qualified to design
Bordering Vegetated Wetland "replacement areas" (replacement area) in
compliance with the General Performance Standard at 310 CMR
10.55(4)(b)1. through 7., inclusive. The Department maintains the right to
approve or deny the nominee based upon the individual's level of
experience as it relates to the successful construction of replacement areas.
B. By no later than close -of -business on Friday, April 29, 2005, said
consultant shall re-establish the boundaries of the Bordering Vegetated
Wetland on the site, as determined on the site plan dated June 14, 2004
and titled "Wetlands Delineation -June 2004, Lots on Rocky Hill Road,
Northampton, MA, for Timothy Zielinski".
C. Within ten (10) business days of the completion of Task B, above, the
Respondent shall submit a draft written document prepared by the
consultant, titled "Bordering Vegetated Wetland Replacement Area Plan
for Assessor's Map 44, Parcels 100, 101, and 102, Rocky Hill Road,
Northampton, Massachusetts" (the Plan), and prepared per the attached
"Addendum to Administrative Consent Order". Within five (5) business
days of the acceptance or modification of this document by the
Department, the Respondent shall cause the Plan to be enacted by
installation of all erosion and sedimentation controls required by the Plan.
10.080)(c). The EO had a "cease and desist" clause, and required the
Respondent to attend an NCC public meeting on June 10, 2004.
5. At the verbal suggestion of Department staff, the Respondent retained the services
of an environmental consultant, who prepared a site plan dated June 14, 2004 and
titled "Wetlands Delineation -June 2004, Lots on Rocky Hill Road, Northampton,
MA, for Timothy Zielinski". Said site plan was voluntarily submitted to the
Department and the NCC shortly thereafter. Said site plan delineates the
boundaries of Bordering Vegetated Wetland [as defined at 310 CMR 10.55(2)] on
the site, and further delineates the portion of said BVW and associated Bank
(Inland) [as defined at 310 CMR 10.54(2)] altered by the Respondent. The areal
extent of alteration to BVW, as delineated on the site plan, exceeds 1/z acre.
6. Paragraph 1 of G.L. c. 131, § 40 states that "...No person shall remove, fill,
dredge or alter any ... fresh water wetland... bordering on ... any ... creek,
...stream,
...without first filing written notice of his intention to so remove, fill, dredge or
alter ... and without receiving and complying with an order of conditions...".
7. 310 CMR 10.05(4)(a) states that "...Any person who proposes to do work that
will remove, fill, dredge or alter any Area Subject to Protection Under M.G.L. c.
131, § 40 shall file a Notice of Intent...".
8. Paragraph 33 of G.L. c. 131, § 40 states that "Whoever violates any provision of
this section, (a) shall be punished by a fine of not more than twenty-five thousand
dollars or by imprisonment for not more than two years, or both such fine and
imprisonment; or (b) shall be subject to a civil penalty not to exceed twenty-five
thousand dollars for each violation.".
2
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
In The Matter of: )
Zielinski Brothers, Inc. )
File Number ACOP -WE -04-6W007
ADMINISTRATIVE CONSENT ORDER
AND NOTICE OF NONCOMPLIANCE
I. THE PARTIES
The Department of Environmental Protection ("the Department") is a duly
constituted agency of the Commonwealth of Massachusetts established pursuant
to G.L. c. 21A, § 7. The Department maintains its principal office at One Winter
Street, Boston, Massachusetts 02108, and a regional office at 436 Dwight Street,
Springfield, Massachusetts 01103.
Zielinski Brothers, Inc., ("Respondent"), is a corporation (Identification Number
043213219) doing business in Massachusetts with a business address at 218
Shoemaker Lane, Agawam, Massachusetts 01001.
Zielinski Brothers, Inc. owns a parcel of property ("site") referred to as Assessor's
Map 44, Parcels 100, 101, and 102, Rocky Hill Road, Northampton, Hampshire
County, Massachusetts.