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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.