Jackson's Marina, Inc. v. Jorling

• Decision Date: 06 May 1993
• Docket Number: No. 1,No. 2,1,2
• Citation: 193 A.D.2d 863,597 N.Y.S.2d 749
• Parties: In the Matter of JACKSON'S MARINA INC. et al., Petitioners, v. Thomas C. JORLING, as Commissioner of the New York State Department of Environmental Conservation, Respondent. (Proceeding) In the Matter of JAMES H. RAMBO INC. et al., Petitioners, v. Thomas C. JORLING, as Commissioner of the New York State Department of Environmental Conservation, Respondent. (Proceeding)
• Court: New York Supreme Court — Appellate Division

Page 749

597 N.Y.S.2d 749

193 A.D.2d 863

In the Matter of JACKSON'S MARINA INC. et al., Petitioners, v. Thomas C. JORLING, as Commissioner of the New York State

Department of Environmental Conservation, Respondent.

(Proceeding No. 1.)

In the Matter of JAMES H. RAMBO INC. et al., Petitioners, v. Thomas C. JORLING, as Commissioner of the New York State

Department of Environmental Conservation, Respondent.

(Proceeding No. 2.)

Supreme Court, Appellate Division Third Department.

May 6, 1993.

Esseks, Hefter & Angel (William P. Maloney, of counsel), Riverhead, for petitioners.

Robert Abrams, Atty. Gen. (Kathleen Liston Morrison, of counsel), Albany, for respondent.

Before WEISS, P.J., and MIKOLL, LEVINE, MERCURE and MAHONEY, JJ.

MIKOLL, Justice.

Proceedings pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which, inter alia, found that petitioners violated the terms of a permit to conduct dredging operations.

In proceeding No. 1 Gordon Jackson and Jackson's Marina Inc. (hereinafter Marina), of which Jackson is president, are the petitioners. Marina is located on Shinnecock Bay, near the southeast entrance of the Shinnecock Canal, in the Town of Southampton, Suffolk County. In proceeding No. 2 Thomas Samuels and James H. Rambo Inc. (hereinafter Rambo), of which Samuels is president, are petitioners. Rambo is engaged in the dredging business.

The Department of Environmental Conservation (hereinafter DEC) issued Marina a permit pursuant to powers granted it in ECL article 15 (Protection of Waters) and ECL article 25 (Tidal Wetlands) on March 19, 1986 allowing Marina to dredge and build a bulkhead to expand Marina's facilities. On March 26, 1987 respondent issued an amendment to the permit authorizing Marina "to have water discharge into South entrance of Shinnecock Canal at Shinnecock Bay. Discharge should be located as per plan south of Montauk Hwy with baffle and diffuser."

In performing hydraulic dredging Rambo would first use a cutter head to penetrate the bottom of the bay and suck up water and sediment, called dredge spoil. The spoil is then suspended and pumped to a spoil disposal site in a diked area. The spoil was carried by a pipe, called the dredge pipe, approximately 1,500 feet in length to the diked area. At that point another three pipes, called spill pipes, carried the effluent, consisting mostly of water, from the diked area into the Shinnecock Canal. A baffle and diffuser, used to disperse the water and material contained in the effluent over a large area and to aerate the water, thereby lessening the turbidity of the water and helping to protect the marine life at a discharge location, was placed on the dredge pipe but not on the three spill pipes.

On April 20, 1987 DEC charged all four petitioners with violating certain provisions of the amended permit by discharging effluent at an unapproved location north of Montauk Highway and in not placing any baffle or diffuser on the spill pipes. At a meeting on April 21, 1987, it was agreed that the dredging operation could continue once the effluent discharge was moved to a point south of Montauk Highway, which was done. The bulkhead extension was completed in April 1987. Subsequently, DEC determined that the bulkhead was not built according to permit specifications.

In July 1989 respondent initiated two administrative proceedings against petitioners charging violations of ECL articles 15, 25 and 71. The first proceeding alleged that petitioners (1) on or about April 19, 1987 caused dredged material effluent to be discharged at an unapproved location north of Montauk Highway, (2) on or about April 19, 1987 failed to use a baffle and diffuser at the effluent discharge point, and (3) on or about April 13, 14, 15, 16 and 20, 1987 placed discharge for dredge spoil disposal at an unapproved location. The second proceeding charged that on or about May 5, 1988 Marina and Jackson caused "the construction of 565 ± linear feet of timber bulkhead between 0 feet and 24 feet offshore of permitted location in noncompliance with approved plans".

Following a hearing on the charges before an Administrative Law Judge (hereinafter ALJ), all the charges contained in the first proceeding were dismissed because the amended permit did not mandate that the baffle and diffuser be used and that the dredged material be dumped at a certain location but, rather, suggested that these things "should" be done and that Rambo's interpretation of where the spill pipes were to be located was reasonable. However, the ALJ upheld the charge in the second proceeding for which he assessed a $3,000 penalty, finding that the permit for the bulkhead required strict and precise adherence to its specifications. Respondent reviewed the ALJ's determination and modified it, asserting that the amended permit was clear in mandating the use of a baffle and diffuser on the spill pipes and that the discharge of the effluent had to occur south of Montauk Highway. Respondent assessed a $2,000 penalty for this violation and increased the ALJ's penalty on the bulkhead violation to $8,000. Petitioners then commenced the instant proceedings challenging respondent's determination.

In our view respondent's determination is supported by substantial evidence with the exception of the finding of liability against Samuels, as an individual, which is not supported by substantial evidence. The determination should therefore be modified by annulling the finding against Samuels as an individual and, except as so modified, confirmed.

There is sufficient evidence to support respondent's findings against the corporate petitioners, Marina and Rambo. Charles Hamilton, chief of DEC's Marine Regulatory Section of the Bureau of Marine Habitat Protection, Division of Marine Resources, testified...