49-008 Brakey LLC ACOP00017403- 2024-09-26-FINAL.pdf
Maura Healey Governor Kimberley Driscoll Lieutenant Governor
Rebecca L. Tepper Secretary Bonnie Heiple Commissioner
This information is available in alternate format. Contact Michelle Waters-Ekanem, Director of Diversity/Civil Rights at 617-292-5751. TTY# MassRelay Service 1-800-439-2370 MassDEP Website: www.mass.gov/dep
Printed on Recycled Paper
September 26, 2024 David Dietz Brakey LLC
32 Laurel Street
Longmeadow, MA 01106 david@dietzconstruction.com RE: Violation of the Massachusetts Wetlands Protection Act, GL c. 131, § 40 and
Violation of the Massachusetts Clean Water Act,
GL c. 21, §§ 26 through 53 Enforcement Document Number 00017403 Glendale Road, Northampton
Dear David Dietz,
Enclosed please find an executed original copy of the Administrative Consent Order with Penalty (ACOP) for your reference and implementation.
MassDEP is encouraging you to familiarize yourself with the terms and conditions of the ACOP
in order to accomplish the requirements set forth therein. Please review Section III, Paragraphs 13, 20, and 21 for specific instructions on how to make the penalty payment. Please be advised that a press release may be issued with respect to this matter.
Should you have any questions relative to this matter, please contact Mary Grover at 617-352-9918 or Mary.Grover@mass.gov. Sincerely,
Date: September 26, 2024 _______________________________ Michael McHugh, Chief
Division of Wetlands and Waterways
Enforcement Document #00017403
2
Enclosure: Draft Administrative Consent Order with Penalty and Notice of Noncompliance
By Certified Mail # 7019 1120 0002 0687 6291 ec Sarah LaValley, AICP
Northampton Conservation Commission
Slavalley@northamptonma.gov Louis S. Moore, Esquire Law Office of Louis S. Moore
lmoore@moore-envlaw.com
David Cameron, SPWS, Principal Fleetwood Environmental Solutions, LLC David@fleetwoodenv.com
Michael McHugh MassDEP – WERO Michael.Mchugh@mass.gov
Heather Parent
Regional Counsel MassDEP – WERO – OGC Heather.Parent@mass.gov
James J. Gibbs IV
MassDEP – WERO – BAS Audrey Piubeni MassDEP – WERO – BAS
COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION
In the matter of:
Brakey LLC
Enforcement Document Number:
00017403
Issuing Bureau: BWR
Issuing Region/Office: WERO
Issuing Program: WET
Primary Program Cited: WET
Suffix(es): NT
FMF/Program ID # INV-WE-23-6W011
ADMINISTRATIVE CONSENT ORDER WITH PENALTY AND NOTICE OF NONCOMPLIANCE
I. THE PARTIES
1.The Department of Environmental Protection (“Department” or “MassDEP”) is a dulyconstituted agency of the Commonwealth of Massachusetts established pursuant to M.G.L. c. 21A,§ 7. MassDEP maintains its principal office at 100 Cambridge Street, Suite 900, Boston,Massachusetts 02114, and its Western Regional Office at 436 Dwight Street, Springfield,Massachusetts 01103.
2.Brakey LLC (“Respondent”) is a limited liability company with its principal offices locatedat 10 Industrial Parkway, Easthampton, MA 01027. David Dietz (“Mr. Dietz”) is a manager ofBrakey LLC. Brakey LLC’s mailing address for purposes of this Order is 32 Laurel Street,Longmeadow, MA 01106.
II. STATEMENT OF FACTS AND LAW
3.MassDEP is responsible for the implementation and enforcement of M.G.L. c. 21, § 26-53,and the Water Quality Certification Regulations at 314 CMR 9.00; and M.G.L. c. 131, § 40 and the
Wetlands Regulations at 310 CMR 10.00. MassDEP has authority under M.G.L. c. 21A, § 16 andthe Administrative Penalty Regulations at 310 CMR 5.00 to assess civil administrative penalties topersons in noncompliance with the laws and regulations set forth above.
4. Respondent does not hold a valid wetlands permit for the parcel of land off Glendale Road
in the City of Northampton (Hampshire County Registry of Deeds Book 8728, Page 340) (“Site”).
5. The following facts and allegations have led MassDEP to issue this Consent Order:
In the Matter of: Brakey LLC
Administrative Consent Order with Penalty
Enforcement Document No. 00017403 Page 2 A. Brakey LLC is the owner of a parcel of land off Glendale Road in the City of Northampton (Hampshire County Registry of Deeds Book 8728, Page 340) (“Site”). The Site consists of
a 33.7-acre parcel of land containing a gravel pit. Hannum Brook (SARISCODE: 3418375)
flows through the site.
B. Hannum Brook is a “River” [as defined at 310 CMR 10.04 and 310 CMR 10.58(2)] and is depicted on the most recent version of the U.S.G.S Topographic Survey. A River has a Riverfront Area [as defined at 310 CMR 10.58(2)] extending horizontally for a distance of
200 feet along each side of the River. Hannum Brook is a Cold-Water Fishery and Critical
Area (as both terms are defined at 310 CMR 10.04). The Site also contains inland Bank [as defined at 310 CMR 10.54(2)] and Land Under Waterbodies and Waterways [LUWW; as defined at 310 CMR 10.56(2)] associated with Hannum Brook.
C. On October 18, 2023, MassDEP received a complaint alleging unpermitted Alteration of
Resource Areas at the Site.
D. On November 1, 2023, MassDEP conducted an inspection of the Site. Mr. Dietz was present. Mr. Dietz indicated that gravel-removing operations had ceased on the Site and that he was in the process of grading, adding topsoil, and spreading seed at the Site to facilitate potential future development. During the Site inspection:
I. MassDEP staff directly observed that greater than 0.5 acres of an area within 200
feet of Hannum Brook that were forested as depicted on MassGIS 2021 aerial imagery were now void of trees. Mr. Dietz indicated that he had recently graded, spread topsoil, and seeded the areas. MassDEP staff observed recent vegetative growth becoming established within the recently cleared area. MassDEP staff also
observed large stockpiles of topsoil and woodchips on the site. Mr. Dietz
acknowledged that the woodchip pile was derived from trees on the Site and that he was looking for a company to transport the pile off-site.
II. Mr. Dietz indicated that he had recently removed an approximately 100-foot-long culvert; this culvert conveyed a section of Hannum Brook. MassDEP staff directly
observed the section of Hannum Brook where the culvert was previously located
and determined that Bank [as defined at 310 CMR 10.54(2)] and Land Under Waterbodies and Waterways [as defined at 310 CMR 10.56(2)] were Altered [as defined at 310 CMR 10.04 Alter] through the removal of the culvert and associated grading. Mr. Dietz showed MassDEP staff the stockpile of eight (8) sections of pipe
that had previously made up the culvert, which were stored at the Site.
III. MassDEP observed and walked along Hannum Brook from where it flows into the Site from the north, south through the Site and east through a culvert beneath an access road leading to another gravel mining area operated by Mr. Dietz. MassDEP staff observed that approximately 1,800 linear feet of Bank [as defined at 310 CMR
10.54(2)] and 900 square feet of Land Under Water Bodies and Waterways [as
defined at 310 CMR 10.56(2)] associated with Hannum Brook were recently graded and were not in the same location as shown on the 2021 MassGIS aerial imagery.
In the Matter of: Brakey LLC
Administrative Consent Order with Penalty
Enforcement Document No. 00017403 Page 3 IV.An incised erosion gully had formed through soils in an area where Mr. Dietzindicated had recently been graded and topped with topsoil. MassDEP directly
observed and followed the sediment-laden water flowing within the gully, into a
wooded area, and discharging directly into Hannum Brook. Discolored water due tothe sedimentation was visible within Hannum Brook. No erosion or sedimentationcontrol barriers were observed anywhere at the Site.
E.The clearing, grading, and culvert removal activities, as well as the discharge of sediment-
laden water, are in violation of the Massachusetts Wetlands Protection Act regulations at
310 CMR 10.00, as the activities resulted in an unpermitted “alteration” (as defined at 310CMR 10.04 Alter) of Resource Areas including Bank [as defined at 310 CMR 10.54(2)]and Land under Water Bodies and Waterways [as defined at 310 CMR 10.56(4)] by way ofchanging the pre-existing drainage characteristics, the destruction of vegetation, and the
physical change in characteristics of Hannum Brook. Physical changes include the
relocation of Resource Areas associated with a portion of Hannum Brook and the change incolor and turbidity within the receiving waters of the Resource areas associated withHannum Brook.
F.The direct discharge of sediment-laden stormwater into, and site grading within, Hannum
Brook is a violation of the Massachusetts Clean Waters Act regulations at 314 CMR 9.00,
as it resulted in unpermitted discharges of dredged or fill material into Waters of the UnitedStates within the Commonwealth (“WUSWC, as defined at 314 CMR 9.02) as prohibited at314 CMR 9.06(2).
G.On November 20, 2023, MassDEP issued a Unilateral Administrative Order (“UAO”;
Enforcement Document # 00016664) to Respondent describing the specific violation of
discharging sediment-laden water, as per M.G.L. c. 21, §§ 26 through 53, specifying theactions to be taken to return to compliance, and stating the deadlines for performing suchactions. Respondent took the following actions pursuant to the UAO:
I.Respondent immediately ceased and desisted all “activity” (as defined at 310 CMR
10.04 Activity) at the Site which resulted in Alteration (as defined at 310 CMR10.04) to any jurisdictional Resource Areas.
II.Within five (5) calendar days of the issuance of the UAO, Respondent stabilized thedeeply incised erosion gully, such that sediment-laden water does not discharge to
any Resource Area.
III.On November 27, 2023, Mr. Dietz submitted photo evidence to MassDEPdocumenting that the erosion gully had been stabilized.
H.The foregoing facts constitute violations of the following statutes and regulations:
I.The Massachusetts Wetlands Protection Act, M.G.L. c. 131, § 40 which states in
part: “No person shall remove, fill, dredge or alter any area subject to protection
under this section without the required authorization, or cause, suffer or allow such
In the Matter of: Brakey LLC
Administrative Consent Order with Penalty
Enforcement Document No. 00017403 Page 4 activity, or leave in place unauthorized fill, or otherwise fail to restore illegally
altered land to its original condition, or fail to comply with an enforcement order
issued pursuant to this section.”
II. 310 CMR 10.02(2)(a): “Activities Within the Areas Subject to Protection under
M.G.L. c. 131, § 40. Any activity proposed or undertaken within an area specified
in 310 CMR 10.02(1), which will remove, fill, dredge or alter that area, is subject to
Regulation under M.G.L. c. 131, § 40 and requires the filing of a Notice of
Intent…”
III. 310 CMR 10.54(4) – for failure to meet the general performance standards for work
on a Bank.
IV. 310 CMR 10.56(4) – for failure to meet the general performance standards for work
in Land Under Waterbodies and Waterways.
V. Illegal discharge of sediment into WUSWC, in violation of the Massachusetts Clean
Waters Act, M.G.L. c. 21, §§ 26 through 53.
VI. 314 CMR 9.06(2): “No discharge of dredged or fill material shall be permitted
unless appropriate and practicable steps have been taken which will avoid and
minimize potential adverse impacts to the bordering or isolated vegetated wetlands,
land under water or ocean, or the intertidal zone.”
III. DISPOSITION AND ORDER
For the reasons set forth above, MassDEP hereby issues, and Respondent hereby consents to, this Order:
6. The parties have agreed to enter into this Consent Order because they agree that it is in their
own interests, and in the public interest, to proceed promptly with the actions called for herein rather than to expend additional time and resources litigating the matters set forth above. Respondent enters into this Consent Order without admitting or denying the facts or allegations set forth herein. However, Respondent agrees not to contest such facts and allegations for purposes of the issuance
or enforcement of this Consent Order.
7. MassDEP’s authority to issue this Consent Order is conferred by the Statutes and Regulations cited in Part II of this Consent Order.
8. This Consent Order supersedes and replaces UAO Enforcement Document # 00016664.
9. Respondent shall perform the following actions:
In the Matter of: Brakey LLC
Administrative Consent Order with Penalty
Enforcement Document No. 00017403 Page 5 A. Within ten (10) business days of the effective date of this Consent Order, Respondent shall nominate, in writing to the Department, an environmental consultant with at least five (5)
years of experience in developing Resource Area restoration plans with specific experience
in restoring Bank, LUWW, and Riverfront Area alterations. 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 and completion of Riverfront Area “restoration areas” as well as stream restoration and fluvial geomorphology. If the Department denies the
Respondent’s nominee, the Respondent shall nominate a new environmental consultant, per
the requirements above, within ten (10) business days of the Department’s written notification of denial to the Respondent. The Department acknowledges the Respondent has identified an environmental consultant at the time of this Consent Order and the Department has approved the nominee.
B. Respondent shall implement and fully comply with the “Site Restoration Plan” as described
and depicted on “Exhibit A: Revised Stream and Buffer Zone Mitigation Plan for Brakey LLC Property at 0 Glendale Road, Florence”, dated September 9, 2024 and associated Figures 1, 2, and 3. Respondent shall submit a schedule to implement the “Site Restoration Plan” for review and approval by the Department and shall implement the “Site Restoration
Plan” according to the approved schedule. Respondent shall further ensure that the
environmental consultant will be on the Site while restoration work pursuant to the “Site Restoration Plan” is underway in order to supervise Respondent’s work and to verify that the work is being undertaken in accordance with the “Site Restoration Plan” as approved by MassDEP.
C. Respondent has allowed vegetation to establish within 200 feet of Rivers [as defined at 310
CMR 10.04 and 310 CMR 10.58(2)] at the Site. No activities which result in an Alteration (as defined at 310 CMR 10.04) are authorized to the area within 200 feet of Hannum Brook, other than those depicted on the “Site Restoration Plan.” Any future activities within 200 feet of Hannum Brook require the filing of a Request for Determination of Applicability or a
Notice of Intent with the Northampton Conservation Commission, as applicable.
D. Upon completion of the restoration activities at the Site pursuant to the “Site Restoration Plan,” Respondent shall have the environmental consultant monitor the restoration area for two (2) full years of full growing seasons, with draft reports submitted annually to the Department by November 30th of each year (“Annual Compliance Report”). A final copy
shall be sent to the Department within thirty (30) calendar days of the receipt of the draft
comments by the Department, if any.
I. The draft “Annual Compliance Report” shall include establishment of a single transect, oriented north to south, on a slight diagonal, in order to establish a minimum of two (2) individual data plots within each of the three planting zones, and include
at least two (2) plots on the western side of the stream, for a total of eight (8) separate
data plots. The data plots shall be evenly spaced in order to objectively capture plan community information. The following metrics shall be determined for each data plot:
In the Matter of: Brakey LLC
Administrative Consent Order with Penalty
Enforcement Document No. 00017403 Page 6 a. Total percent cover of plant species
b. Relative cover of plant species
c. Relative cover of the target invasive plant species
In addition, all the caged/nursey specimens shall be examined to determine mortality rates, and any mortalities will be replaced in-kind. Cages shall be removed upon the issuance of a return-to-compliance letter from the Department.
II. The draft “Annual Compliance Report” shall include photographic stations
documenting the pre-and post-restoration conditions. Such report shall accurately
describe conditions of the restoration area and how it meets the relevant performance standards for each restored Resource Area. The report shall identify any deficiencies and any recommended adjustments to meet the requirements of the relevant performance standards. If recommendations are made that the Department agrees to
and determines necessary to meet the relevant performance standards, Respondent
shall carry out those recommendations within a reasonable time period, as specified and required by the Department.
III. The draft “Annual Compliance Report” shall be subject to the review and approval of the Department. Upon review and approval of the Department, the draft shall
become the final “Annual Compliance Report.”
IV. If the restoration area does not meet the relevant performance standards for each restored Resource Area, Respondent shall complete any additional restoration enhancement activities, as required by the Department, including but not limited to, regrading, soil augmentation, vegetation planting and extended monitoring to address
the deficiency.
E. Each failure to implement any component of the “Site Restoration Plan” as approved by the Department shall be a violation of this Consent Order.
10. Except as otherwise provided, all notices, submittals and other communications required by this Consent Order shall be directed to:
Mary Grover, Environmental Analyst MassDEP, Western Regional Office 436 Dwight Street Springfield Massachusetts 01103
mary.grover@mass.gov
617-352-9918 Such notices, submittals and other communications shall be considered delivered by Respondent upon receipt by MassDEP.
In the Matter of: Brakey LLC
Administrative Consent Order with Penalty
Enforcement Document No. 00017403 Page 7 11. Actions required by this Consent Order shall be taken in accordance with all applicable federal, state, and local laws, regulations and approvals. This Consent Order shall
not be construed as, nor operate as, relieving Respondent or any other person of the necessity of
complying with all applicable federal, state, and local laws, regulations and approvals. 12. For purposes of M.G.L. c. 21A, § 16 and 310 CMR 5.00, this Consent Order shall also serve as a Notice of Noncompliance for Respondent’s noncompliance with the requirements cited in Part
II above. MassDEP hereby determines, and Respondent hereby agrees, that any deadlines set forth
in this Consent Order constitute reasonable periods of time for Respondent to take the actions described. 13. The Commonwealth assesses a civil administrative penalty in the amount of twenty-seven
thousand five hundred dollars ($27,500.00) for the violations identified in Part II above, as follows:
A. Within thirty (30) days of the effective date of this Consent Order, Respondent shall pay to the Commonwealth fifteen thousand dollars ($15,000); and
B. MassDEP hereby agrees to suspend payment of the sum of twelve thousand five hundred
dollars ($12,500.00); provided, however, that if Respondent violates any provision of this Consent Order, or further violates any of the regulations cited in Part II above at any time prior to the issuance of a return to compliance letter issued pursuant to Paragraph 24 of this Consent Order, Respondent shall pay to the Commonwealth the remaining amount of twelve
thousand five hundred dollars ($12,500.00) within thirty (30) days of the date MassDEP
issues Respondent a written demand for payment. This paragraph shall not be construed or operate to bar, diminish, adjudicate, or in any way affect, any legal or equitable right of MassDEP to assess Respondent additional civil administrative penalties, or to seek any other relief, with respect to any future violation of any provision of this Consent Order or any law
or regulation.
14. Respondent understands, and hereby waives, its right to an adjudicatory hearing before MassDEP on, and judicial review of, the issuance and terms of this Consent Order and to notice of any such rights of review. This waiver does not extend to any other order issued by the MassDEP.
15. This Consent Order may be modified only by written agreement of the parties hereto. 16. The provisions of this Consent Order are severable, and if any provision of this Consent Order or the application thereof is held invalid, such invalidity shall not affect the validity of other
provisions of this Consent Order, or the application of such other provisions, which can be given
effect without the invalid provision or application, provided however, that MassDEP shall have the discretion to void this Consent Order in the event of any such invalidity. 17. Nothing in this Consent Order shall be construed or operate as barring, diminishing,
adjudicating or in any way affecting (i) any legal or equitable right of MassDEP to issue any
additional order or to seek any other relief with respect to the subject matter covered by this Consent Order, or (ii) any legal or equitable right of MassDEP to pursue any other claim, action, suit, cause of action, or demand which MassDEP may have with respect to the subject matter covered by this
In the Matter of: Brakey LLC
Administrative Consent Order with Penalty
Enforcement Document No. 00017403 Page 8 Consent Order, including, without limitation, any action to enforce this Consent Order in an administrative or judicial proceeding.
18. This Consent Order shall not be construed or operate as barring, diminishing, adjudicating, or in any way affecting, any legal or equitable right of MassDEP or Respondent with respect to any subject matter not covered by this Consent Order.
19. This Consent Order shall be binding upon Respondent and upon Respondent’s successors
and assigns. Respondent shall not violate this Consent Order and shall not allow or suffer Respondent’s members, managers, employees, agents, contractors or consultants to violate this Consent Order. Until Respondent has fully complied with this Consent Order, Respondent shall provide a copy of this Consent Order to each successor or assignee at such time that any succession
or assignment occurs.
20. In addition to the penalty set forth in this Consent Order (including any suspended penalty), Respondent shall pay stipulated civil administrative penalties to the Commonwealth in accordance with the following schedule if Respondent violates any provision” of this Consent Order:
For each day, or portion thereof, of each violation, Respondent shall pay stipulated civil administrative penalties in the following amounts: Period of Violation Penalty per day
1st through 15th days $100.00 per day 16th through 30th days $250.00 per day 31st day and thereafter $500.00 per day Stipulated civil administrative penalties shall begin to accrue on the day a violation occurs and shall
continue to accrue until the day Respondent corrects the violation or completes performance,
whichever is applicable. Stipulated civil administrative penalties shall accrue regardless of whether MassDEP has notified Respondent of a violation or act of noncompliance. All stipulated civil administrative penalties accruing under this Consent Order shall be paid within thirty (30) days of the date MassDEP issues Respondent a written demand for payment. If simultaneous violations
occur, separate penalties shall accrue for separate violations of this Consent Order. The payment of
stipulated civil administrative penalties shall not alter in any way Respondent’s obligation to complete performance as required by this Consent Order. MassDEP reserves its right to elect to pursue alternative remedies and alternative civil and criminal penalties which may be available by reason of Respondent’s failure to comply with the requirements of this Consent Order. In the event
MassDEP collects alternative civil administrative penalties, Respondent shall not be required to pay
stipulated civil administrative penalties pursuant to this Consent Order for the same violations. Respondent reserves whatever rights it may have to contest MassDEP’s determination that Respondent failed to comply with the Consent Order and/or to contest the accuracy of MassDEP’s calculation of
the amount of the stipulated civil administrative penalty. Upon exhaustion of such rights, if any,
Respondent agrees to assent to the entry of a court judgment if such court judgment is necessary to execute a claim for stipulated penalties under this Consent Order.
In the Matter of: Brakey LLC
Administrative Consent Order with Penalty
Enforcement Document No. 00017403 Page 9 21. The Respondent shall pay all civil administrative penalties due under this Consent Order, including suspended, or stipulated penalties and/or any associated fees. The Respondent has four
options for payment; Option 1: certified check; Option 2: cashier’s check; Option 3: on-line payment using a credit card;
Option 4: electronic transfer.
Option 1 and 2: Certified or cashier’s checks must be made payable to the Commonwealth of Massachusetts and received within 30 days of the effective date of this Consent Order.
If payment is made by certified check or cashier’s check, the Respondent shall clearly print on the face of its payment Respondent’s full name, the enforcement document number appearing on the first page of this Consent Order, and Respondent’s Federal Employer Identification Number, and shall mail it to:
Commonwealth of Massachusetts Department of Environmental Protection Commonwealth Master Lockbox P.O. Box 3982
Boston, Massachusetts 02241-3982
(IMPORTANT NOTE: DO NOT INCLUDE THE SIGNED ACOP WITH PAYMENT BY CHECK)
Option 3:
On-line Payment Using Credit Card Your prospective BILL will contain information necessary to pay on-line by credit card. When you receive your BILL: LOG ONTO THE MassDEP e-PAYMENT WEB SITE AT:
HTTPS://WWW.MASSPAYS.COM/dep
On–line payment using credit card is due within 30 days of the effective date of this Consent Order. (If a BILL (invoice) is not received within 10 days of the effective date of the consent order, you should contact The Revenue Department at 617-525-7436 to obtain a copy of your BILL (invoice))
Option 4: Electronic Funds Transfer Respondent must complete the Administrative Penalty Notification Form found at https/massgov.formstack.com/forms/apn to request payment by Electric Funds
Transfer. The form can also be used to correct any information on the invoice,
In the Matter of: Brakey LLC
Administrative Consent Order with Penalty
Enforcement Document No. 00017403 Page 10 including billing name, address, etc. MassDEP will respond by email with all the information needed to set up the EFT payments.
In the event Respondent fails to pay in full any civil administrative penalty as required by this Consent Order, then pursuant to M.G.L. c. 21A, § 16, Respondent shall be liable to the Commonwealth for up to three (3) times the amount of the civil administrative penalty, together with costs, plus interest on the balance due from the time such penalty became due and attorneys’ fees,
including all costs and attorneys’ fees incurred in the collection thereof. The rate of interest shall be
the rate set forth in M.G.L. c. 231, § 6C. 22. Failure on the part of MassDEP to complain of any action or inaction on the part of Respondent shall not constitute a waiver by MassDEP of any of its rights under this Consent Order.
Further, no waiver by MassDEP of any provision of this Consent Order shall be construed as a
waiver of any other provision of this Consent Order. 23. To the extent authorized by the current owner, Respondent agrees to provide MassDEP, and MassDEP’s employees, representatives and contractors, access at all reasonable times to the Site for
purposes of conducting any activity related to its oversight of this Consent Order. Notwithstanding
any provision of this Consent Order, MassDEP retains all of its access authorities and rights under applicable state and federal law. 24. Force Majeure
A. MassDEP agrees to extend the time for performance of any requirement of this Consent Order if MassDEP determines that such failure to perform is caused by a Force Majeure event. The failure to perform a requirement of this Consent Order shall be considered to have been caused by a Force Majeure event if the following criteria are met: (1) an event delays performance of a
requirement of this Consent Order beyond the deadline established herein; (2) such event is
beyond the control and without the fault of Respondent and Respondent’s employees, agents, consultants, and contractors; and (3) such delay could not have been prevented, avoided or minimized by the exercise of due care by Respondent or Respondent’s employees, agents, consultants, and contractors.
B. Financial inability and unanticipated or increased costs and expenses associated with the performance of any requirement of this Consent Order shall not be considered a Force Majeure Event.
C. If any event occurs that delays or may delay the performance of any requirement of this Consent
Order, Respondent shall immediately, but in no event later than 5 days after obtaining knowledge of such event, notify MassDEP in writing of such event. The notice shall describe in detail: (i) the reason for and the anticipated length of the delay or potential delay; (ii) the measures taken and to be taken to prevent, avoid, or minimize the delay or potential delay; and
(iii) the timetable for taking such measures. If Respondent intends to attribute such delay or
potential delay to a Force Majeure event, such notice shall also include the rationale for attributing such delay or potential delay to a Force Majeure event and shall include all available documentation supporting a claim of Force Majeure for the event. Failure to comply with the
In the Matter of: Brakey LLC
Administrative Consent Order with Penalty
Enforcement Document No. 00017403 Page 13 SPECIAL INSTRUCTIONS:
Your two signed copies of the Administrative Consent Orders with Penalty (ACOP) must be
delivered, for execution (signature) by MassDEP, to the following address:
Mary Grover, Environmental Analyst
MassDEP, Western Regional Office 436 Dwight Street Springfield Massachusetts 01103 mary.grover@mass.gov
617-352-9918
MassDEP will return one signed copy of the ACOP to you after MassDEP has signed, provided you have followed the above instructions.
Payment will be due, pursuant to the instructions outlined within the ACOP after you receive your
fully executed copy.
PLEASE DO NOT INCLUDE YOUR PAYMENT WITH THE SIGNED ACOPs SIGNED ACOPS ARE TO BE SENT TO THE ABOVE ADDRESS.
Please call Mary Grover at 617-352-9918 if you have questions regarding payment and/or instructions.
84 Russell Street
Hadley, MA 01035
413.325.7372
Michael McHugh, Chief September 9, 2024
Division of Wetlands and Waterways
MassDEP-Western Regional Office
436 Dwight Street
Springfield, MA 01103
Subject: Revised Stream and Buffer Zone Mitigation Plan for Brakey LLC Property at 0 Glendale
Road, Florence.
Dear Mr. McHugh,
On Behalf of Brakey LLC, and as a follow-up to our video conference of May 24, 2024, Fleetwood
Environmental Solutions, LLC (“Fleetwood”) is providing herein revisions to the conceptual mitigation plan
figures for the property referenced above. These revisions are based on suggestions and comments provided by
the Massachusetts Department of Environmental Protection (“Department”) during the video conference, as
well as a follow-up to a site inspection conducted by MassDEP on August 20, 2024 and subsequent discussions.
The following narrative outlines the Department’s itemized comments in italics, followed by our team’s
response in regular font. The attached figures depict any revisions noted in the text.
1.Can eastern white pine be added to the woody saplings plant mix? Yes, half of the intended eastern
hemlock saplings in Planting Zone 2 have been substituted with eastern white pine, and additional
eastern white pine saplings have been added to Planting Zone 1.
2.Can woody plantings be added to the western side of the stream channel? Yes, the open area west of
the stream channel now has a Planting Zone 1 (i.e., 0-25 feet), given the proximity of the property line
adjacent to this reach of the stream.
3.Please provide an invasive species management plan for the planting and seeding area. Fleetwood
recently inspected the Study Area and notes that the area 100-feet east of the stream has lush herbaceous
growth. Given this is a successional area, several non-native/pioneer species were noted, including but
not limited to Japanese knotweed, black locust, yellow foxtail, and mugwort. These four species appear
to be the predominant invasives. Fleetwood’s experience is that yellow foxtail and mugwort generally
get out-competed by native goldenrods in open areas. Japanese knotweed and black locust are hardy
and tend to be very competitive, thus, these two species will be the focus of a targeted invasive species
management plan. During the compliance monitoring period, black locust saplings will be physically
removed (i.e., cut at the base) and the accompanying slash stacked beyond the mitigation area. A
combination of mechanical cutting and chemical treatment of Japanese knotweed will occur each fall
84 Russell Street
Hadley, MA 01035
413.325.7372
between now and the conclusion of the compliance monitoring period. The chemical treatment will be
conducted by a licensed herbicide applicator.
4.The heights of the woody planting and extant trees in Figure 2 do not appear to match the vertical scale
provided. In order to simplify Figure 2, the vertical scale has been removed. The height of the proposed
nursery stock woody plantings will be 4-6 feet. The height of material sourced on the western portion of
the property is variable, but in many cases exceeds 6 feet.
5.What is the proposed number of woody plantings? Table 1 provides detail on the proposed woody
plantings.
Table 1. Proposed Woody Plantings for Buffer Zone Mitigation at 0 Glendale Road Site
Common Name Latin Name Quantity Source* Spacing
Speckled Alder Alnus incana 30 On-site gravel pit Variable/random
Trembling Aspen Populus tremuloides 25 On-site gravel pit Variable/random
Eastern White Pine Pinus strobus 25 Nursery Variable/random
Northern Red Oak Quercus rubra 25 Nursery Variable/random
Eastern Hemlock Tsuga canadensis 25 Nursery Variable/random
Gray Birch Betula populifolia 30 On-site gravel pit Variable/random
Sweet-Fern Comptonia peregrina 30 On-site gravel pit Variable/random
Winterberry Ilex verticillata 40 Arbor Day
Foundation Variable/random
TOTAL PLANTINGS 230
*Nursery stock has been specified based on the sizes and pricing at New England Wetland Plants in Amherst, MA. Sizes of
nursery stock plantings are all 4-6 feet in height and containerized. The winterberry specimens were bare root and installed
on May 28, 2024.
6.Is any kind of protection proposed for the woody saplings to prevent herbivory? Yes, cylindrical wire
mesh cages are proposed to be installed around each woody sapling sourced from the nursery. An image
with specifications is attached. Herbivory has not been observed on the plant material to be sourced on-
site, so those transplants are not proposed be caged.
7.Based on questions regarding the cobble check dams, a formal “stone cross vane” detail has been
provided as Figure 3.
8.What about loaming and seeding with a conservation mix out to 200 feet, as well as in the open area
within 200 feet of the stream where it flows west to east near the property’s southern boundary?
Photographs were taken of these areas on May 28, 2024 and furnished to the Department, which depict
lush growth, primarily of native grasses and clover. A subsequent site inspection conducted by
MassDEP and Fleetwood on August 20, 2024 concluded that due to the loam and seed mix that was
applied to the entire Buffer Zone (and beyond) during 2023, loaming and seeding of the Buffer Zone is
no longer required.
84 Russell Street
Hadley, MA 01035
413.325.7372
9.Can red oak and white pine be added to Planting Zone 1? Yes, please see the revised Figure 2,
attached.
10.Consider adding quaking aspen to the woody mix. Quaking aspen has been added to Planting Zones 1
and 2.
11.Please provide a proposed monitoring plan. Two to three years of monitoring will be expected, with at
least one inspection per growing season. Given the Buffer Zone work conducted last year is already
yielding positive results, and qualitative assessment of that area has been performed this spring, our
team suggests that formal monitoring and reporting be conducted during the 2025 and 2026 growing
seasons. The proposed monitoring would involve establishment of a single transect, oriented north to
south---on a slight diagonal--- in order to establish a minimum of two (2) individual data plots within
each of the three planting zones, and include at least two (2) plots on the western side of the stream, for
a total of eight (8) separate data plots. The data plots will be evenly spaced in order to objectively
capture plant community information. The following metrics are proposed to be determined for each
data plot:
a.Total percent cover of plant species
b.Relative cover of plant species
c.Relative cover of the target invasive plant species
In addition, all the caged/nursery specimens will be examined to determine mortality rates, and any
mortalities will be replaced in-kind. Cages will be removed upon issuance of a Return-to-Compliance
(“RTC”) letter from the Department.
12.One item not discussed during the video-conference: based on a site inspection conducted June 13,
2024, the catchment to the rip rap swale depicted on the former Figure 3 is now lushly vegetated, with
only a few, small, bare spots (see attached photograph). As such, the loaming and seeding originally
planned for this area is also proposed to be omitted, as that would smother the desired vegetation that
exists. A site inspection conducted by MassDEP and Fleetwood on August 20, 2024 concluded that due
to the loam and seed mix that was applied to this area during 2023, loaming and seeding of the Buffer
Zone, and installation of straw wattles is no longer required. As such, the former Figure 3 has been
removed from the mitigation package, and the former Figure 4 (stone cross-vane detail) is now Figure 3.
13.We also wish to bring to the Department’s attention the remarkable condition of the stream channel and
its banks where the culvert sections were removed in 2023 to day-light the stream. This represents a
significant ecological improvement to the Site.
84 Russell Street
Hadley, MA 01035
413.325.7372
We hope these revisions address the Department's comments, and that the Department will now approve this
Plan so we can move forward to finalize the ACOP and resolve this enforcement matter. Do contact me with
any questions. Thank you.
Sincerely,
David Cameron
David Cameron, SPWS #1210
Principal
Fleetwood Environmental Solutions, LLC
Attachments
•Revised Figures 1-3
•Image of Protective Cage for Nursery Woody Stock Plantings
Copy: David Dietz
Louis Moore
Wire Cage for Sapling Protection
60” tall; 18-24” in diameter
2023 Aerial Imagery
Property Tax Parcels
DRAFT---FOR SETTLEMENT DISCUSSION ONLY
Figure 3: Typical Detail for
Stone Cross Vane
Source:
Natural Stream Restoration and
Enhancement
Oklahoma State University Extension
Published Mar. 2017|Id: BAE-1526
By Jeri Fleming, J.D, Jason Vogel,
Contact Deneen Simpson 857-406-0738
Massachusetts Department of Environmental Protection
100 Cambridge Street 9th Floor Boston, MA 02114
TTY# MassRelay Service 1-800-439-2370 • https://www.mass.gov/environmental-justice
(Version revised 4.21.2023) 310 CMR 1.03(5)(a)
Communication for Non-English-Speaking Parties
This document is important and should be translated immediately.
If you need this document translated, please contact MassDEP's Director of EJ
at the telephone number listed below.
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Contact Deneen Simpson 857-406-0738
Massachusetts Department of Environmental Protection
100 Cambridge Street 9th Floor Boston, MA 02114
TTY# MassRelay Service 1-800-439-2370 • https://www.mass.gov/environmental-justice
(Version revised 4.21.2023) 310 CMR 1.03(5)(a)
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