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Home My WebLink AboutMiscellaneous - 330 CAMPBELL ROAD 4/30/2018 (3)-NQS-, Z4 PRINCIPALS Theodore A Barten, PE Margaret B Briggs Michael E Guski, CCM Samuel G Mygatt, LLB Dale T Raczynski, PE Cindy Schlessinger Lester B Smith, Jr Victoria ,H Fletcher, RLA Robert 0' Neal, INCE ASSOCIATES Andrew D Magee Michael D Howard, PWS Laura E Rome 3 Clock Tower Place, Suite 250 Maynard, MA 01754 www.epsilonassociates.com 978 897 7100 FAX 978 897 0099 sfl A S SO C I ATE S INC. Projects 4/2062/Mitigation Report October 22, 2008 Mr. Michael Abell, Environmental Analyst Department of Environmental Protection Northeast Regional Office 205B Lowell Street Wilmington, MA 01887 RECEIVED OCT 2 2 2008 NORTH ANDOVER CONSERVATION COMMISSION Subject: 2008 Wetland Restoration Monitoring Report, ACOP-NE-07-6WO01, 330 Campbell Road, North Andover, MA Dear Mr. Abell: As you are aware, Mr. Stephen McCarthy and the Northeast Regional Department of Environmental Protection ("DEP"), signed a Consent Order on January 24, 2007, agreeing to requirements for restoration of a Bordering Vegetated Wetland ("BVW") resource area filled on the above referenced property. On behalf of Mr. McCarthy, Epsilon Associates, Inc. ("Epsilon"), prepared a Wetland Restoration Plan dated February 21, 2007, which was approved by the DEP on April 6, 2007. Restoration activities of the BVW resource were completed in May of 2007. This monitoring report is being prepared in accordance with condition 10(A)(iii) of the signed Consent Order. Epsilon's observations are detailed below. June 2008 Monitoring Inspection On June 11, 2008, an Epsilon scientist inspected the approximate 350 s.f. restoration area on the above referenced property. Planted species included two red maple, four highbush blueberry and four winterberry. All but one of the planted shrubs was observed alive and thriving. The blueberry were observed in fruit. The herbaceous layer exhibited a dominance of wetland grasses (Carex sp.), rushes (Juncus sp.) and jewelweed (Impatiens capensis) and appeared to lack many of the upland herbaceous species documented during the October 2007 monitoring inspection. No surface standing water was observed within the restoration area, however, the soils were moist and appear to be maintaining sufficient hydrology to support the wetland vegetation. Photographs of the restoration area during the Spring 2008 inspection are attached for your review. t _: ,, .. i. - -- t F-nLG 1ALF F,p C, CnL\(LohnL�G.�A121�1. Ln.nl-c.I11 Ti1_n�_; c_. Mr. Michael Abell October 22, 2008 October 2008 Monitoring Inspection On October 6, 2008, an Epsilon scientist inspected the approximate 350 s.f. restoration area. The dense herbaceous layer appears to have established as predominantly wetland community over the last year. Herbaceous vegetation observed included smartweed (Polygonum spp)., jewelweed (Impatiens capensis), rush (Juncus spp.) and various sedge (Carex spp.) and grass species. The planted woody vegetation was alive and thriving with the exception of two of the planted winterberry, which have appeared to have died over the 2008 growing season. Epsilon recommends two arrow -wood shrubs be planted in the Spring of 2009 to replace the dead plants. Soils were saturated within the restoration area and a soil plot was conducted, which revealed evidence of mottling and hydric soil conditions. Epsilon will continue to monitor the restoration area until the end of the 2009 growing season and will conduct an inspection in the Spring and Fall of next year. If you have any questions pertaining to this monitoring report, please feel free to contact me at 978 461-6227 or at jvondrak@epsilonassociates.com. Thank you. Sincerely, EPSILON, M-SOCIATES, Inc. �e Vondrak enior Scientist, Ecological Sciences cc: Stephen McCarthy North Andover Conservation Commission 1 A ENGINEERS ENVIRONMENTAL CONSULTANTS E Photos 1 & 2: Restored BVW area. Restoration Site Photographs Epsilon Spring 2008 330 Campbell Road North Andover Massachusetts ASSOCIATES INC. Photos 3: View of restored BVW facing southeast. Photos 4: View of planted highbush blueberry in the area. Restoration Site Photographs Epsilon Fall 2008 330 Campbell Road North Andover Massachusetts SSOCIATES INC. c . Photos 5: Close-up of saturated surface in BVW restoration area. Photos 6: Herbaceous layer. Epsilon Fall 2008 I ATE S INC. Restoration Site Photographs 330 Campbell Road North Andover, Massachusetts Asflon SSOCIATE S INC. Projects 4/2062/Mitigation Report October 24, 2007 Mr. Michael Abell, Environmental Analyst Department of Environmental Protection Northeast Regional Office 205B Lowell Street Wilmington, MA 01887 RECEIVED OCT 2 62001 NORTH ANDOVER CONSERVATION COMMISSION PRINCIPALS Subject: Fall 2007 Wetland Restoration Report, ACOP -NE -07-6W001 r330 Theodore A Barten, PE 1TAif pbellRoad; North Andover, MA Margaret B Briggs Michael E Guski, CCM Dear Mr. Abell: Samuel G Mygatt, LLB As you are aware, Mr. Stephen McCarthy and the Northeast Regional Department of Dale T Raczynski, PE Environmental Protection ("DEP"), signed a Consent Order on January 24, 2007, agreeing to requirements for restoration of a Bordering Vegetated Wetland ("BVW") Cindy Schlessinger resource area filled on the above referenced property. On behalf of Mr. McCarthy, Lester B Smith, Jr Epsilon Associates, Inc. ('Epsilon"), prepared a Wetland Restoration Plan dated February 21, 2007, which was approved by the DEP on April 6, 2007. Restoration Victoria H Fletcher, RLA activities of the BVW resource were completed in May of 2007. This monitoring Robert D O'Neal, CCM report is being prepared in accordance with condition 10(A)(iii) of the signed Consent Order. Epsilon's observations are detailed below. 3 Clock Tower Place, Suite 250 Fall 2007 Monitoring inspection Maynard, MA 01754 www.epsilonassociates.com On October 23, 2007, Epsilon scientists inspected the approximate 350 s.f. 978 897 7100 restoration area on the above referenced property. Planted species included two FAX 978 897 0099 red maple, four highbush blueberry and four winterberry. All planted woody vegetation was observed alive and thriving. Winterberry were observed in fruit. The herbaceous layer exhibited a mixture of upland and wetland species. Herbaceous vegetation observed included foxtail species (Setaria sp.), clover (Trifolium spp.), panicum (Panicum spp.), smartweed (Polygonum spp.), and barnyard grass (Echinochloa crusgalh). No standing water was observed within 21 inches of the soil surface. The observed upland herbaceous species within the restoration area are most likely a result of the drought conditions that have persisted over the last several months. Epsilon will continue to monitor the restoration area during the 2008 growing season. Photographs of the restoration area are attached for your review. Mr. Michael Abell October 24, 2007 If you have any questions pertaining to this monitoring report, please feel free to contact me at 978 461-6227 or at jvondrak@epsilonassociates.com. Thank you. Sincerely, EPSILO ASSOCIATES, Inc. J ie Vondrak roject Scientist cc: Stephen McCarthy North Andover Conservation Commission 2 Photos 1 & 2: Restored BVW area. Restoration Site Photographs Fall 2007 330 Campbell Road Epsilon North Andover, Massachusetts SSOCIATES INC. �\ COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION s NORTHEAST REGIONAL OFFICE 205B Lowell Street, WiClin�tVEon, MA 01887 * (978) 694-3200 DEVAL L. PATRICK Q IAN A. BOWLES Governor APRq Secretary TIMOTHY P. MURRAY 0 6�� ARLEEN O'DONNELL Lieutenant Governor NORTHANDOVER Commissioner 00WERVAT.ION COMMISS-ION Stephen McCarthy C/o Julie Vondrak Epsilon Associates, Inc. 3 Clock Tower Place, Suite 250 Maynard, MA 01745 Dear Ms. Vondrak: April 6, 2007 WETLANDS/North Andover ACOP -NE -07-6W001 330 Campbell Road The Massachusetts Department of Environmental Protection, Wetlands and Waterways Program (MassDEP) completed its review of the Wetlands Restoration Plan (dated February 21, 2007) submitted for 330 Campbell Road, North Andover Massachusetts. The MassDEP hereby approves the proposed plan and authorizes the start of work pursuant to the plan. If you have any questions I may be reached at 978-694-3257. Very truly yours, Michael Abell Environmental Analyst Wetlands & Waterways Program ES/es enclosure cc: North Andover Conservation Commission, 1600 Osgood Street, Building 20, Suite 2-36, North Andover, MA, 01845 Stephen McCarthy, 330 Campbell Road, North Andover, MA 01845 This information is available in alternate format. Call Donald M. Gomes, ADA Coordinator at 617-556-1057. TDD Service - 1-800-298-2207. http://www.mass.gov/dep • Fax (978) 694-3499 is Printed on Recycled Paper /I T R A N S M I T T A L 3 Clock Tower Place, Suite 250 Maynard, MA 01754 ��' �� Phone: 978/897-7100 ASSOCIATES INC. Fax: 978/897-0099 Engineers ❑ Environmental Consultants Date: February 21, 2007 To: From 1"a Michael Abell, Environmental Analyst Commonwealth of Massachusetts Executive Office of Environmental Affairs Department of Environmental Protection Northeast Regional Office 2058 Lowell Street Wilmington, MA 01887 Julie Vondrak, Epsilon Associates, Inc. RECEIVED FEB 2 7 2007 NORTH ANDOVER CONSERVATION COMMISSION Wetland Restoration Plan, 330 Campbell Road, North Andover, MA ACOP -N E-07-6WW001 ❑ Urgent ❑ For Review ❑ Please Comment ❑ Please Reply ❑ For Your Use Hi Michael: Please see the attached restoration report for review and approval. Please contact me if you have any questions or would like to discuss revisions to the report Thank you. Julie Vondrak (978) 461-6227 cc: North Andover Conservation Commission RECEIVED FF8 2 7 2007 Vj NORTH ANDOVER CONSERVATION COMMISSION Wetland Restoration Plan ACOP -N E-07-6WW001 330 Campbell Road North Andover, MA February 21, 2007 Prepared for: Stephen McCarthy 330 Campbell Road North Andover, MA 01845 Prepared by: Epsilon Associates, Inc. 3 Clock Tower Place, Suite 250 Maynard, MA 01754 Epsilon ASSOCIATES INC. ENGINEERS ® ENVIRONMENTAL CONSULTANTS TABLE OF CONTENTS 1.0 Background 1 2.0 Wetland Restoration Plan 1 2.1 Existing Conditions 1 2.2 Restoration Methodology 2 2.3 Restoration Planting Plan 2 2.4 Wetland Boundary Demarcation 3 2.5 Restoration Area Monitoring 3 3.0 Conclusion 4 Attachment A Figures: USGS Locus Map and Aerial Map Attachment B Photographs Wetland Restoration Plan i Table of Contents Epsilon Associates, Inc. 1.0 Background As summarized in the January 4, 2007 - Notice of Enforcement Conference, the Department of Environmental Protection ("DEP") conducted a site inspection on the property of 330 Campbell Road on October 24, 2006 to determine if a violation had occurred under the Massachusetts Wetland Protection Act and Regulations ("Act and Regulations") (M.G.L. c. 131, § 40 and 310 CMR 10.00).1 See Attachment A, USGS Locus Map. During the site visit, Michael Abell, Environmental Analyst from DEP, concluded that approximately 252 s.f. feet of fill had been placed within a bordering vegetated wetland ("BVW") (310 CMR 10.55) on the property owned by Stephen McCarthy (the "Respondent") without a valid Order of Conditions from the local Conservation Commission or the DEP. The fill consisted of leaves and grass clippings. In response to the above mentioned findings, the DEP requested that Respondent attend an Enforcement Conference on January 24, 2007. The purpose of the Enforcement Conference was to provide Respondent with an opportunity to reach a negotiated settlement with the DEP to bring the site into compliance and pay a civil administrative penalty as appropriate. On January 25, 2007, Respondent entered into Consent Order with the DEP and paid a $1,500 administrative penalty. An additional $5,000 was suspended. In accordance with Condition #10(B) of the Consent Order, all activity of stockpiling and storage of material in the Buffer Zone shall immediately cease until such time as Respondent files a Request for Determination of Applicability or Notice of Intent with the North Andover Conservation Commission, copies to the DEP. In accordance with Condition #10 of the Consent Order, Respondent is responsible for submitting a wetland restoration plan to the DEP on or before March 1, 2007 for the approximately 252 s.f. of wetland fill. Accordingly, the details of the proposed wetland restoration plan are provided herein in the following sections. 2.0 Wetland Restoration Plan 2.1 Existing Conditions As stated above, the area of BVW that is occupied by fill material is approximately 252 s.f. and is located to the rear of the subject property (see Attachment B, Aerial Locus Map). The adjacent BVW is dominated with red maple (Acer rubrum), highbush blueberry (Vaccinium corymbosum), sweet pepperbush (Clethra alnifolia) and winterberry (Ilex verticillata). The filled area contains approximately three feet of compacted leaf and grass clippings. It does not appear that the underlying hydric soil was altered and that the leaves and grass clippings were simply deposited on top of the wetland edge. For the purposes of this The DEP had identified a possible change in the extent of wetland resource areas on the subject property using aerial photography and wanted to confirm that if said change had occurred, that it was permitted in accordance with the Act and Regulations. 330 Campbell Road 1 Wetland Restoration Plan EEpsilon Associates, Inc. restoration plan it is presumed that the surface elevation of the adjacent BVW is representative of the depth to seasonal high groundwater. 2.2 Restoration Methodology Approximately 252 s.f. of fill material will be removed from the BVW. Prior to removal of the fill material, trenched silt fence will be installed along the edge of the fill line, so as to prevent potential soil migration into the undisturbed BVW resource area. Haybales are not recommended as they may create a berm between the restoration area and the resource area, they may introduce invasive species into the resource area, and are difficult to remove if they become saturated. The DEP will be given adequate notice prior to commencement of excavation for the restoration area so that inspections may be completed during the excavation procedure. Under the supervision of a qualified wetland scientist, the fill material will be removed by a small excavator that will be staged along the upland edge of the restoration area and will reach down into the BVW. Under no circumstances will the excavator be allowed to enter the BVW. Fill material will be removed, working from the furthest area of fill back towards the upland area. Fill material will be removed down to the grade of the adjacent BVW and/or when the original topsoil (A horizon or O horizon) becomes exposed. When the original topsoil becomes apparent, the remaining fill debris will be raked and removed by hand, so as to reduce disturbance to the original topsoil. Removed materials will be immediately loaded onto a truck and removed from the site and disposed of properly. Upon removal of all leaf and grass debris, the area will be planted in accordance with the planting plan described in Section 2.3 below. 2.3 Restoration Planting Plan Prior to planting, elevations within the restoration area will be reviewed and approved by a qualified wetland scientist. Assuming the original topsoil has not been removed, additional soils will not be added to the restoration area. While not anticipated, if the wetland scientist determines additional topsoil is necessary, a wetland topsoil consisting of equal volumes of a good quality loam and well composted organic material will be applied to the restoration area to a depth determined to be appropriate. Soil consistency should be loose to friable and texture should be loamy sand to silt loam. The organic material used should be well or partially decomposed. Clean leaf compost is the preferred soil amendment to achieve these standards. Mineral materials should be predominantly in the loam, loamy sand to silt loam texture range, with minimal quantities of gravel or rock. The restoration area will be planted randomly with the species identified in Table 2-3 below. The exposed substrate shall be protected against erosion until re-establishment of herbaceous wetland vegetation occurs. 330 Campbell Road El 2 Wetland Restoration Plan Epsilon Associates, Inc. C El Table 2-3: Wetland Restoration Planting Plan C r L Species # of plants Size Spacing (on center) Red maple (Acer rubrum) 2 24"-36" 15' oc Highbush blueberry (Vaccinium corymbosum) 4 24"-36" 5 to 8' oc' Winterberry (Ilex verticillata) 4 24" -36" 5'-8' oc' New England Wetmix2 (or equivalent) 1 Ib/5,000 s.f. 2.4 Wetland Boundary Demarcation Upon completion of the plantings, a loose boulder wall will be installed by the Respondent along the upland edge of the restoration area. The boulders, approximately 2 to 3 feet in diameter and spaced evenly, will provide a physical barrier along the restoration area, thus preventing future encroachment into the resource area. Additionally, wetland protection markers/placards with the text "Protected Wetland Resource Area" (or similar wording), purchased by Respondent from the North Andover Conservation Commission, will be installed approximately every 30 to 50 feet along the edge of the wetland resource area on the subject property. The 100 -foot buffer zone will be staked in the field in order to prevent any stockpiling of material in the buffer zone without the proper permits. 2.5 Restoration Area Monitoring and Implementation Schedule As noted above, a qualified wetland scientist will be on-site during restoration and planting El activities that shall be completed as soon as conditions allow but no later than June 17, 2007 (see Condition 10(A)(ii) of Consent Order). The restoration area will be monitored by C C C the wetland scientist for two complete growing seasons. A total of four inspections will be conducted during the 2007 and 2008 growing seasons and an annual monitoring report will be submitted to the DEP and North Andover Conservation Commission no later than October 31" of each year. The reports will document the success of the plantings and the hydrologic conditions of the area and will include photographs. If after the first growing 2 New England Wetmix is provided by New England Wetland Plants, Inc., Amherst, MA (413) 548- 8000. Wetland Seed Mix (Typ.) — Fringed sedge, Canada manna grass, three way sedge, blue vervain, woolgrass, lurid sedge, soft rush, joe-pye weed, green bulrush, bearded sedge, tussock sedge, boneset, broomsedge, fox sedge, barberpole sedge, rusty flatsedge, bladder sedge, swamp candle, marsh St. John's Wort, northern bugleweed, and fowl manna grass (Application Rate = 1 Ib per 5,000 square feet). 330 Campbell Road 3 Wetland Restoration Plan Epsilon Associates, Inc. U season, the restoration area does not appear to be thriving, a contingency plan will be developed and submitted to the DEP for review and approval. 3.0 Conclusion The above wetland restoration plan has been prepared in accordance with the requirements of the Consent Order issued by the DEP (see Condition #10). A copy of the DEP approved restoration plan will be forwarded to the North Andover Conservation Commission. Upon completion of restoration activities it is anticipated that the restored BVW will provide those functions and values presumed significant under the Act and Regulations including the ability to provide: flood control, storm damage prevention, protection of public and private water supplies, protection of groundwater, wildlife habitat, and prevention of pollution. 330 Campbell Road 4 Wetland Restoration Plan Epsilon Associates, Inc. Attachment A — Figures .l j;�� a .,� f ' �7 ► «� { � 'i•. { { i x , e • •° ' s t * r + .rte, • �$ i� � , ! G • 1F t , ♦ ; tF s `w � .�`� t'f tet' �,.��, "•` '�� ate; R��• r` `tx r 3 ' b •t M - rt 4 . Ar Restoration Area Ablk ► a , r `*WlJFy t x f _� _' 1. • 5,'� , :'•.°l^ ` jjL a `fir, fai.' +' ws # t e ...a �` N Y. Mew t tseF.- gyp; 4.,j �- s yt fy { r 1! 11-T 3 � tis �{ � '.-+��•� i + g�f j,jv �;� , '5�. ►.^t'..� Scale 1:1,890 Figure 2 Basemap: 2005 Orthophotography, MassG 1 fly Locus 75 0 75 150 330 CaTrnball 21 C G DAttachment B — Photographs c C c 11, C El C C C fl Photo 1: Fill area facing east towards resource area. Photo 2: Fill area facing south towards resource area. Attachment B, Site Photographs e�;' 330 Campbell Road ®PASSOCIATES INC.North Andover, Massachusetts INC. E I a I E C C c �I? ^q COMMONWEALTH OF MASSACHUSETTS " Py EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION NORTHEAST REGIONAL OFFICE 205B Lowell Street, Wilmington, MA 01887 . (978) 694-3200 DEVAL L. PATRICK IAN A. BOWLES Governor RECEIVED Secretary TIMOTHY P. MURRAY ARLEEN O'DONNELL Lieutenant Governor � Acting Commissioner JAN 2 6 2007 NORTH ANDOVER CONSERVATION COMMISSION January 25, 2007 Stephen McCarthy 330 Campbell Road North Andover, MA 01845 Dear Mr. McCarthy: WETLANDS/North Andover ACOP -NE -07-6W001 330 Campbell Road Enclosed is a copy of the fully executed Consent Order between you and MassDEP. MassDEP anticipates that the requirements of the Consent Order will be adhered to and looks forward to you achieving full compliance on the site. Please pay particular attention to the various deadlines and penalty payment procedures in the Order and do not hesitate to contact me with any questions or concerns. I may be reached at 978-694-3257. Very truly y urs �ee_'� ✓'r , V Michael Abell v Environmental Analyst Wetlands & Waterways Program ES/es enclosure cc: North Andover Conservation Commission, 1600 Osgood Street, Building 20, Suite 2736, North Andover, MA, 01845 Attn: Michael D. Howard, Epsilon Associates Inc., 3 Clock Tower Place, Suite 250, Maynard, MA 01754 This information is available in alternate format. Call Donald M. Gomes, ADA Coordinator at 617-556-1057. TDD Service - 1-800-298-2207. http://www.mass.gov/dep • Fax (978) 694-3499 0 Printed on Recycled Paper COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION In the matter of: Stephen McCarthy ACOP -NE -07-6W001 ADMINISTRATIVE CONSENT ORDER WITH PENALTY AND NOTICE OF NONCOMPLIANCE I. THE PARTIES 1. The Department of Environmental Protection ("Department" or "MassDEP") is a duly constituted agency of the Commonwealth of Massachusetts established pursuant to M.G.L. c. 21A, § 7. The Department maintains its principal office at One Winter Street, Boston, Massachusetts 02108, and its Northeast Regional Office at 205B Lowell Street, Wilmington, MA, 01887. 2. Stephen McCarthy ("Respondent") is an Individual who resides at 330 Campbell Road in North Andover, Massachusetts. Respondent's mailing address for purposes of this Consent Order is 330 Campbell Road, North Andover, MA 01845. II. STATEMENT OF FACTS AND LAW 3. The Department is responsible for the implementation and enforcement of: M.G.L. C. 131, § 40 ("WPA")and the Wetlands Regulations at 310 CMR 10.00. The Department has authority under M.G.L. c. 21A, § 16 and the Administrative Penalty Regulations at 310 CMR 5.00 to assess civil administrative penalties to persons in noncompliance with, the laws and regulations set forth above. 4. Respondent is the Owner of 330 Campbell Road, North Andover, MA which is identified by the North Andover Assessor's Office as Map 106D; Block 0025 ("Site"). Respondent temporarily stockpiles materials on site for his Landscaping business (McCarthy's Landscaping). 5. The following facts have led the Department to issue this Consent Order: In the Matter of: Stephen McCarthy ACOP -NE -07-6W001 Page 2 A. Based on information obtained from recent aerial photographs indicating changes to a wetland resource area, MassDEP staff conducted an inspection of the Site on October 24; 2006. B. Observations made during the inspection of the site confirmed that 252 square feet of Bordering Vegetated Wetland (`BVW") had been filled by leaves and _ grass clippings. C. No Notice of Intent or Request for Determination of Applicability was filed for this activity. D. The WPA at paragraph 1 provides in relevant part: "No person shall remove, fill ... or alter any bank, fresh water wetland, coastal wetland, dune, salt marsh, meadow or swamp bordering any estuary, creek, river, stream, pond, or lake, or any land under such waters ... other than in the course of maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public ... without filing written notice of his intention to so remove, fill dredge or alter, including such plans as may be necessary to describe such activity and its effect on the environment and without receiving and complying with an order on conditions ..." E. The WPA at paragraph 27 provides in relevant 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 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. Each day such violation continues shall constitute a separate offense ..." F. The WPA also provides that anyone who violates any provision of the WPA may be ordered to restore the affected property to its original condition and to take other action to remedy the violation. G. The WPA further provides that whoever violates the WPA shall be subject to a civil administrative penalty of up to Twenty-five Thousand Dollars and No/100 ($25,000) for each violation. H. The Regulations, specifically the provisions of 310 CMR 10.02 (2)(a) provides in relevant part: "Any activity proposed or undertaken within an area specified in 310 CMR 10.02 (1) [Areas Subject to Protection Under the Act] which will remove, fill, dredge or alter that area is subject to regulation under the Act and requires the filing of a Notice of Intent". In the Matter of: Stephen McCarthy ACOP -NE -07-6W001 Page 3 I. The Regulations, at 310 CMR 10.08 (1)() provides in relevant part: ...Violations include, but are not limited to: ... failure to obtain a valid Final Order or Extension Permit prior to conducting an Activity Subject to Regulation Under M.G.L. c. 131, sect 40 as defined in 310 CMR 10.02 (2). J. The Regulations, specifically the provisions of 310 CMR 10.55(4)(a), provide that no work proposed within a BVW shall destroy or otherwise impair any portion of said BVW. K. . By filling and altering BVW without filing a Notice of Intent for and obtaining a Final Order under the WPA authorizing the this alteration, Respondent violated the WPA and the Wetlands Regulations 310 CMR 10.02, 310 CMR 10.08, and 310 CMR 10.55 (4) (a). L. By failing to restore the wetlands to their condition prior to the unauthorized alteration, the Respondent has violated and continues to violate the WPA. III. DISPOSITION AND ORDER For the reasons set forth above, the Department hereby issues, and Respondent hereby consents to, this Order: 8. 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. 9. The Department's authority to issue this Consent Order is conferred by the Statutes and Regulations cited in Part H of this Consent Order. 10. Respondent shall perform the following actions: A. On or before, March 1, 2007, Respondent shall submit to the Department for review and approval a plan prepared by a wetland scientist to restore 252 square feet of BVW in accordance with the Department's Massachusetts Inland Wetland Replication Guidelines ("Restoration Plan"). Once the restoration plan has been approved by MassDEP a copy shall be sent to the North Andover Conservation Commission. In the Matter of: Stephen McCarthy ACOP -NE -07-6W001 Page 4 i) This plan shall include but not necessarily be limited to: depth to seasonal high groundwater; proposed depth of excavation, list of native species to be planted, planting schematic, monitoring plan during and two -years after completion of restoration, protocols for re -plantings, and schedule or work. ii) The plan shall provide that the restoration shall be completed by June 17, 2007. Thereafter, Respondent shall implement the Restoration Plan as approved by the Department in accordance with the schedule approved by the Department. Restoration shall be supervised by a wetland scientist. Each failure to implement the Restoration Plan approved by the Department in accordance with the schedule shall be a separate stipulated penalty under this Consent Order Monitoring of the wetland restoration site shall be done by a wetland scientist. Monitoring reports shall be submitted to the MassDEP and copied to the North Andover Conservation Commission at the end of each growing season, no later than October 31S` of each year. Said monitoring reports shall include photographs of the restoration area. The final report shall submitted no later than October 31, 2009. B. All activity of stockpiling and storage of material in the Buffer Zone shall immediately .-I� cease until such time as Respondent files a Request for Determination of Applicability or Notice of Intent with the North Andover Conservation Commission, copied to Michael Abell at the address below, and receives a Determination of Applicability or Final Order of Conditions authorizing such activities within the Buffer Zone. 11. Except as otherwise provided, all notices, submittals and other communications required by this Consent Order shall be directed to: Michael Abell Department of Environmental Protection Northeast Regional Office 205B Lowell Street Wilmington, MA 01887 Such notices; submittals and other communications shall be considered delivered by Respondent upon receipt by the Department. 12. 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. In the Matter of: Stephen McCarthy ACOP -NE -07-6W001 Page 5 13. 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 H above. The Department hereby determines, and Respondent hereby agrees, that the deadlines set forth above constitute reasonable periods of time for Respondent to take the actions described. 14. Respondent shall pay to the Commonwealth a civil administrative penalty 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 One Thousand Five Hundred dollars ($1,500.00); and B. If Respondent violates any provision of this Consent Order, or further violates any of the regulations cited in Part II above before October 31, 2009, Respondent shall pay to the Commonwealth the remaining amount of Five Thousand dollars ($5,000.00) 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. 15. Respondent understands, and hereby waives, its right to an adjudicatory hearing before the Department 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 Department. 16. This Consent Order may be modified only by written agreement of the parties hereto. 17. 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 the Department shall have the discretion to void this Consent Order in the event of any such invalidity. 18. 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 the Department 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 the Department to pursue any other 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 or judicial proceeding. In the Matter of: Stephen McCarthy ACOP -NE -07-6W001 Page 6 19. This Consent Order shall not be construed or operate as barring, diminishing, adjudicating, or in any way affecting, any legal or equitable right of the Department or Respondent with respect to any subject matter not covered by this Consent Order. 20. This Consent Order shall be binding upon Respondent and upon Respondent's heirs, successors and assigns. Respondent shall not violate this Consent Order and shall not allow or suffer Respondent's 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. 21. In addition to the penalty set forth in this Consent Order (including any suspended penalty), if Respondent violates any provision of the Consent Order, Respondent shall pay stipulated civil administrative penalties to the Commonwealth in the amount of $1,000.00 per day for each day, or portion thereof, each such violation continues. 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 the Department 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 the Department issues Respondent a written demand for payment. If a court judgment is necessary to execute a claim for stipulated penalties under this Consent Order, Respondent agrees to assent to the entry of such judgment. 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. The Department 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 the Department 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 the Department's determination that Respondent failed to comply with the Consent Order and/or to contest the accuracy of the Department's calculation of the amount of the stipulated civil administrative penalty. 22. Respondent shall pay all civil administrative penalties due under this Consent Order, including suspended and stipulated penalties, by certified check, cashier's check, or money order made payable to the Commonwealth of Massachusetts. Respondent shall clearly print on the face of its payment Respondent's full name, the file number appearing on the first page of this Consent Order, and the Respondent's Federal Employer Identification Number, and shall mail it to: In the Matter of: Stephen McCarthy ACOP -NE -07-6W001 / Page 7 Commonwealth of Massachusetts Department of Environmental Protection Commonwealth Master Lockbox P.O. Box 3982 Boston, Massachusetts 02241-3982 Respondent shall simultaneously mail a copy of the payment to: Thomas Mahin Acting Deputy Regional Director Department of Environmental Protection 205B Lowell Street Wilmington, MA 01887 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. 23. Failure on the part of the Department to complain of any action or inaction on the part of Respondent shall not constitute a waiver by the Department of any of its rights under this Consent Order. Further, no waiver by the Department of any provision of this Consent Order shall be construed as a waiver of any other provision of this Consent Order. 24. Respondent agrees to provide the Department, and the Department'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, the Department retains all of its access authorities and rights under applicable state and federal law. 25. The undersigned certify that they are fully authorized to enter into the terms and conditions of this Consent Order and to legally bind the party on whose behalf they are signing this Consent Order. 26. 1 This Consent Order shall become effective on the date that it is executed by the Department. In the Matter of: Stephen McCarthy ACOP -NE -07-6W001 Page 8 Consented To: Stephen McCarthy By: Step n McCarthy 330 Campbell Road North Andover, MA 01845 Date: d Y -/ d Fed. Tax. ID#_ D J-1 Iry —C4"�U�Ar Issued By: DEPARTMENT OF ENVIRONMENTAL PROTECTION By: Richard Chalpin Regional Director Department of Environmental Protection Northeast Regional Office 205B Lowell Street Wilmington, MA 01887 Date: o 2 MITT ROMNEY Governor KERRY HEALEY Lieutenant Governor January 4, 2007 COMMONWEALTH OF MASSACHUSETTS RE copy EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS ,DEPARTMENT OF ENVIRONMENTAL PROTECTION NORTHEAST REGIONAL OFFICE 205B Lowell Street, Wilmington, MA 01887 • (978) 694-3200 Stephen McCarthy 330 Campbell Road North Andover, MA 01845 ROBERT W. GOLLEDGE, Jr. Secretary RECEIVED JAN p 4 70071 NORTH ANDOVER CONSERVATION COMMISSION NOTICE OF ENFORCEMENT CONFERENCE ARLEEN O'DONNELL Acting Commissioner THIS IS AN IMPORTANT NOTICE. FAILURE TO RESPOND TO THIS NOTICE COULD RESULT IN SERIOUS LEGAL CONSEQUENCES. Dear Mr. McCarthy: As you are aware, on October 24, 2006 MassDEP personnel conducted an inspection and/or made observations of your property at 330 Campbell Road in North Andover, Massachusetts. Based on the inspection and observations and MassDEP records, MassDEP has determined that you are in violation of one or more laws, regulations, orders, licenses, permits or approvals enforced by MassDEP. MassDEP requests that you attend an enforcement conference for the purpose of providing you with the opportunity to reach a negotiated agreement with MassDEP to bring the site into compliance and pay a civil administrative penalty as appropriate. Enclosed is a draft Administrative Consent Order describing the violations for your review. The enforcement conference will provide you with the opportunity to discuss the alleged violations and return to compliance and/or negotiate penalty conditions of a final enforcement document. MassDEP believes that prompt resolution of this enforcement case in a manner that ensures your expeditious return to compliance and resolves all penalty issues is beneficial and consistent with the MassDEP's environmental protection goals. Prompt settlement may also decrease the resources you and MassDEP might expend on protracted litigation of the issues. This information is available in alternate format. Call Donald M. Gomes, ADA Coordinator at 617-556-1057. TDD Service 1-978-694-3492. http://www.mass.gov/dep • Fax (978) 694-3499 0 Printed on Recycled Paper Page 2 Enf. Conf. McCarthy Time for the conference has been reserved at: LOCATION: Hearing Room 2 MassDEP Northeast Regional Office 205B Lowell Street Wilmington, MA 01887 :DATE: Wednesday, January 24, 2007 `TIME: 10:00 A.M. If you either do not attend the enforcement conference or do not reach a negotiated settlement, MassDEP will initiate appropriate enforcement action and you will have limited, if any, further opportunity to reach a negotiated settlement of this case. Please contact Mr. Michael Abell at 978-694-3257 by close of business on Wednesay, January 17, 2007, to confirm your attendance at the enforcement conference, or if you have any questions about this matter. If you plan to be represented by counsel at the conference, please indicate that when you contact this office so that we may arrange to have an attorney present. Sincerely, —<'CQ �?/ Thomas D. Mahin Acting Deputy Regional Director Bureau of Resource Protection TDM/ees enclosure COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION In the matter of. ) Stephen McCarthy ) ACOP -NE -07-6W001 ADMINISTRATIVE CONSENT ORDER WITH PENALTY AND NOTICE OF NONCOMPLIANCE I. THE PARTIES 1. The Department of Environmental Protection ("Department" or "MassDEP") is a duly constituted agency of the Commonwealth of Massachusetts established pursuant to M.G.L. c. 21 A, § 7. The Department maintains its principal office at One Winter Street, Boston, Massachusetts 02108, and its Northeast Regional Office at 205B Lowell Street, Wilmington, MA, 01887. 2. Stephen McCarthy ("Respondent") is an Individual who resides at 330 Campbell Road in North Andover, Massachusetts. Respondent's mailing address for purposes of this Consent Order is 330 Campbell Road, North Andover, MA 01845. II. STATEMENT OF FACTS AND LAW 3. The Department is responsible for the implementation and enforcement of. M.G.L. c. 131, § 40 ("WPP.")and the `'etla:�ds Regulations at 310 C14iR i0.00. The Department has authority under M.G.L. c. 21A, § 16 and the Administrative Penalty Regulations at 310 CMR 5.00 to assess civil administrative penalties to persons in noncompliance with the laws and regulations set forth above. 4. ' Respondent is the Owner of 330 Campbell Road, North Andover, MA which is identified by the North Andover Assessor's Office as Map 106D; Block 0025 ("Site"). Respondent operates a Landscaping business at the site (McCarthy's Landscaping). 5. The following facts have led the Department to issue this Consent Order: In the Matter of. Stephen McCarthy ACOP # Page 2 A. Based on information obtained from recent aerial photographs indicating changes to a wetland resource area, MassDEP staff conducted an inspection of the Site on October 24, 2006. B. Observations made during the inspection of the site confirmed that 252 square feet of Bordering Vegetated Wetland (`BVW") had been filled. C. No Notice of Intent or Request for Determination of Applicability was filed for the site. D. The WPA at paragraph 1 provides in relevant part: "No person shall remove, fill ... or alter any bank, fresh water wetland, coastal wetland, dune, salt marsh, meadow or swamp bordering any estuary, creek, river, stream, pond, or lake, or any land under such waters ... other than in the course of maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public ... without filing written notice of his intention to so remove, fill dredge or alter, including such plans as may be necessary to describe such activity and its effect on the environment and without receiving and complying with an order on conditions ..." E. The WPA at paragraph 27 provides in relevant 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 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. Each day such violation continues shall constitute a separate offense ..." F. The WPA also provides that anyone who violates any provision of the WPA may be ordered to restore the affected property to its original condition and to take other action to remedy the violation. G. The WPA further provides that whoever violates the WPA shall be subject to a civil administrative penalty of up to Twenty-five Thousand Dollars and No/100 ($25,000) for each violation. H. The Regulations, specifically the provisions of 310 CMR 10.02 (2)(a) provides in relevant part: "Any activity proposed or undertaken within an area specified in 310 CMR 10.02 (1) [Areas Subject to Protection Under the Act] which will remove, fill, dredge or alter that area is subject to regulation under the Act and requires the filing of a Notice of Intent". In the Matter of. Stephen McCarthy ACOP # Page 3 I. The Regulations, at 310 CMR 10.08 (1)() provides in relevant part: ...Violations include, but are not limited to: ... failure to obtain a valid Final Order or Extension Permit prior to conducting an Activity Subject to Regulation Under M.G.L. c. 131, sect 40 as defined in 310 CMR 10.02 (2). J. The Regulations, specifically the provisions of 310 CMR 10.55(4)(a), provide that no work proposed within a BVW shall destroy or otherwise impair any portion of said BVW. K. By filling and altering BVW without filinga Notice of Intent for and obtaining a Final Order under the WPA authorizing the this alteration, Respondent violated the WPA and the Wetlands Regulations 310 CMR 10.02, 310 CMR 10.08, and 310 CMR 10.55 (4) (a). L. By failing to restore the wetlands to their condition prior to the unauthorized alteration, the Respondent has violated and continues to violate the WPA. III. DISPOSITION AND ORDER For the reasons set forth above, the Department hereby issues, and Respondent hereby consents to, this Order: 8. 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. 9. The Department's authority to issue this Consent Order is conferred by the Statutes and Regulations cited in Part II of this Consent Order. 10. ,Respondent shall perform the following actions: A. On or before, Murch 1, 2007, Respondent shall submit to the Department for review and approval a plan prepared by a wetland scientist to restore 252 square feet of BVW in 'accordance with the Department's Massachusetts Inland Wetland Replication Guidelines ("Restoration Plan"). Once the restoration plan has been approved by' MassDEP a copy shall be sent to the North Andover Conservation Commission. /In the Matter of ACOP # / Page 4 / g Stephen McCarthy i) This plan shall include but not necessarily be limited to: depth to seasonal high groundwater; proposed depth of excavation, proposed depth of organic soils, source of organics, list of native species to be planted, planting schematic, monitoring plan during and two -years after completion of replication, protocols for re - plantings, and schedule or work. ii) The plan shall provide that the replication shall be completed by June 17, 2007. Thereafter, Respondent shall implement the Restoration Plan as approved by the Department in accordance with the schedule approved by the Department. Restoration shall be supervised by a wetland scientist. Each failure to implement the Replication Plan approved by the Department in accordance with the schedule shall be a separate stipulated penalty under this Consent Order iii). Monitoring of the wetland restoration site shall be done by a wetland scientist. Monitoring reports shall be submitted to the MassDEP and copied to the North Andover Conservation Commission at the end of each growing season, no later than October 31" of each year. ,Said monitoring reports shall include photographs of the restoration area. The final report shall submitted no later than October 31, 2009. B. On or before April 1, 2007 Respondent shall file for a Request for Determination with the North Andover Conservation Commission, copied to Michael Abell at the address below, to permit the business activities within the Buffer Zone. 11. Except as otherwise provided, all notices, submittals and other communications required by this Consent Order shall be directed to: Michael Abell Department of Environmental Protection Northeast Regional Office 205B Lowell Street Wilmington, MA 01887 Such notices, submittals and other communications shall be considered delivered by Respondent upon receipt by the Department. 12. 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. In the Matter of. Stephen McCarthy ACOP # Page 5 13. For purposes of M.G.L. c. 21 A, § 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. The Department hereby determines, and Respondent hereby agrees, that the deadlines set forth above constitute reasonable periods of time for Respondent to take the actions described. 14. Respondent shall pay to the Commonwealth the sum of XXX dollars ($XXX.00) within thirty (30) days of the effective date of this Consent Order as a civil administrative penalty for the violations identified in Part II above. This paragraph shall not be construed or operate to bar, diminish, adjudicate, or in any way affect, any legal or equitable right of the Department 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. 15. Respondent understands, and hereby waives, its right to an adjudicatory hearing before the Department 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 Department. 16. This Consent Order may be modified only by written agreement of the parties hereto. 17. 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 the Department shall have the discretion to void this Consent Order in the event of any such invalidity. 18. 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 the Department 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 the Department to pursue any other 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 or judicial proceeding. 19. This Consent Order shall not be construed or operate as barring, diminishing, adjudicating, or in any way affecting, any legal or equitable right of the Department or Respondent with respect to any subject matter not covered by this Consent Order. 20. This Consent Order shall be binding upon Respondent and upon Respondent's heirs, successors and assigns. Respondent shall not violate this Consent Order and shall not -allow or suffer Respondent's employees, agents, contractors or consultants to violate this Consent Order. Until Respondent has fully complied with this Consent Order, Respondent shall provide a copy In the Matter of: Stephen McCarthy ACOP # Page 6 of this Consent Order to each successor or assignee at such time that any succession or assignment occurs. 21. In addition to the penalty set forth in this Consent Order (including any suspended penalty), if Respondent violates any provision of the Consent Order, Respondent shall pay stipulated civil administrative penalties to the Commonwealth in the amount of $1,000.00 per day for each day, or portion thereof, each such violation continues. 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 the Department 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 the Department issues Respondent a written demand for payment. If a court judgment is necessary to execute a claim for stipulated penalties under this Consent Order, Respondent agrees to assent to the entry of such judgment. 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. The Department 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 the Department 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 the Department's determination that Respondent failed to comply with the Consent Order and/or to contest the accuracy of the Department's calculation of the amount of the stipulated civil administrative penalty. 22. Respondent shall pay all civil administrative penalties due under this Consent Order, including suspended and stipulated penalties, by certified check, cashier's check, or money order made payable to the Commonwealth of Massachusetts. Respondent shall clearly print on the face of its payment Respondent's full name, the file number appearing on the first page of this Consent Order, and the 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 Respondent shall simultaneously mail a copy of the payment to: In the Matter of. Stephen McCarthy ACOP # Page 7 Thomas Mahin Acting Deputy Regional Director Department of Environmental Protection 205B Lowell Street Wilmington, MA 01887 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. 23. Failure on the part of the Department to complain of any action or inaction on the part of Respondent shall not constitute a waiver by the Department of any of its rights under this Consent Order. Further, no waiver by the Department of any provision of this Consent Order shall be construed as a waiver of any other provision of this Consent Order. 24. Respondent agrees to provide the Department, and the Department'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, the Department retains all of its access authorities and rights under applicable state and federal law. 25. The undersigned certify that they are fully authorized to enter into the terms and conditions of this Consent Order and to legally bind the party on whose behalf they are signing this Consent Order. 26. This Consent Order shall become effective on the date that it is executed by the Department. Consented To: Stephen McCarthy By: Stephen McCarthy 330 Campbell Road North Andover, MA 01845 Date: Issued By: i f In the Matter of: Stephen McCarthy % ACOP # Page 8 DEPARTMENT OF ENVIRONMENTAL PROTECTION By: -- Richard Chalpin Regional Director Department of Environmental Protection Northeast Regional Office 205B Lowell Street Wilmington, MA 01887 Date: ip 1:' tCOPY COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION NORTHEAST REGIONAL OFFICE 205B Lowell Street, Wilmington, MA 01887 • (978) 694-3200 DEVAL L. PATRICK Governor IAN A. BOWLES TIMOTHY P. MURRAY RECEIVED Secretary Lieutenant Governor ARLEEN O'DONNELL JAN 2 6 2001 Acting Commissioner NORTH ANDOVER CONSERVATION COMMISSION January 25, 2007 Stephen McCarthy 330 Campbell Road North Andover, MA 01845 Dear Mr. McCarthy: WETLANDS/North Andover ACOP -NE -07-6W001 330 Campbell Road Enclosed is a copy of the fully executed Consent Order between you and MassDEP. MassDEP anticipates that the requirements of the Consent Order will be adhered to and looks forward to you achieving full compliance on the site. Please pay particular attention to the various deadlines and penalty payment procedures in the Order and do not hesitate to contact me with any questions or concerns. I may be reached at 978-694-3257. Very truly y ur Michael Abell Environmental Analyst Wetlands & Waterways Program ES/es enclosure cc: North Andover Conservation Commission, 1600 Osgood Street, Building 20, Suite 2736, North Andover, MA, 01845 Attn: Michael D. Howard, Epsilon Associates Inc., 3 Clock Tower Place, Suite 250, Maynard, MA 01754 This information is available in alternate format. Call Donald M. Gomes, ADA Coordinator at 617-556-1057. TDD Service - 1-800-298-2207. http://Www.mass.gov/dep . Fax (978) 694-3499 Co Printed on Recycled Paper I j v , v COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION In the matter of: ) Stephen McCarthy ) ACOP -NE -07-6W001 ADMINISTRATIVE CONSENT ORDER WITH PENALTY AND NOTICE OF NONCOMPLIANCE I. THE PARTIES 1. The Department of Environmental Protection ("Department" or "MassDEP") is a duly constituted agency of the Commonwealth of Massachusetts established pursuant to M.G.L. c. 21A, § 7. The Department maintains its principal office at One Winter Street, Boston, Massachusetts 02108, and its Northeast Regional Office at 205B Lowell Street, Wilmington, MA, 01887. 2. Stephen McCarthy ("Respondent") is an Individual who resides at 330 Campbell Road in North Andover, Massachusetts. Respondent's mailing address for purposes of this Consent Order is 330 Campbell Road, North Andover, MA 01845. 11. STATEMENT OF FACTS AND LAW 3. The Department is responsible for the implementation. and enforcement of: M.G.L. c. 131, § 40 ("WPA")and the Wetlands Regulations at 310 CMR 10.00. The Department has authority under M.G.L. c. 21A, § 16 and the Administrative Penalty Regulations at 310 CMR 5.00 to assess civil administrative penalties to persons in noncompliance with. the laws and regulations set forth above. 4. Respondent is the Owner of 330 Campbell Road, North Andover, MA which is identified by the North Andover Assessor's Office as Map 106D; Block 0025 ("Site"). Respondent temporarily stockpiles materials on site for his Landscaping business (McCarthy's Landscaping). 5. The following facts have led the Department to issue this Consent Order: In the Matter of: Stephen McCarthy ACOP -NE -07-6W001 Page 2 A. Based on information obtained from recent aerial photographs indicating changes to a wetland resource area, MassDEP staff conducted an inspection of the Site on October 24, 2006. B. Observations made during the inspection of the site confirmed that 252 square feet of Bordering Vegetated Wetland (`BVW") had been filled by leaves and grass clippings. C. No. Notice of Intent or Request for Determination of Applicability was filed for this activity. D. The WPA at paragraph 1 provides in relevant part: "No person shall remove, fill ... or alter any bank, fresh water wetland, coastal wetland, dune, salt marsh, meadow or swamp bordering any estuary, creek, river, stream, pond, or lake, or any land under such waters ... other than in the course of maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public ... without filing written notice of his intention to so remove, fill dredge or alter, including such plans as may be necessary to describe such activity and its effect on the environment and without receiving and complying with an order on conditions ..." E. The WPA at paragraph 27 provides in relevant 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 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. Each day such violation continues shall constitute a separate offense ..." F. The WPA also provides that anyone who violates any provision of the WPA may be ordered to restore the affected property to its original condition and to take other action to remedy the violation. G. The WPA further provides that whoever violates the WPA shall be subject to a civil administrative penalty of up to Twenty-five Thousand Dollars and No/100 ($25,000) for each violation. H. The Regulations, specifically the provisions of 310 CMR 10.02 (2)(a) provides in relevant part: "Any activity proposed or undertaken within an area specified in 310 CMR 10.02 (1) [Areas Subject to Protection Under the Act] which will remove, fill, dredge or alter that area is subject to regulation under the Act and requires the filing of a Notice of Intent". In the Matter of: Stephen McCarthy ACOP -NE -07-6W001 Page 3 I. The Regulations, at 310 CMR 10.08 (1)() provides in relevant part: ...Violations include, but are not limited to: ... failure to obtain a valid Final Order or Extension Permit prior to conducting an Activity Subject to Regulation Under M.G.L. c. 131, sect 40 as defined in 310 CMR 10.02 (2). J. The Regulations, specifically the provisions of 310 CMR 10.55(4)(a), provide that no work proposed within a BVW shall destroy or otherwise impair any portion of said BVW. K. By filling and altering BVW without filing a Notice of Intent for and obtaining a Final Order under the WPA authorizing the this alteration, Respondent violated the WPA and the Wetlands Regulations 310 CMR 10.02, 310 CMR 10.08, and 310 CMR 10.55 (4) (a). L. By failing to restore the wetlands to their condition prior to the unauthorized alteration, the Respondent has violated and continues to violate the WPA. III. DISPOSITION AND ORDER For the reasons set forth above, the Department hereby issues, and Respondent hereby consents to, this Order: 8. 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. 9. The Department's authority to issue this Consent Order is conferred by the Statutes and Regulations cited in Part II of this Consent Order. 10. Respondent shall perform the following actions: A. On or before, March 1, 2007, Respondent shall submit to the Department for review and approval a plan prepared by a wetland scientist to restore 252 square feet of BVW in accordance with the Department's Massachusetts Inland Wetland Replication Guidelines ("Restoration Plan"). Once the restoration plan has been approved by MassDEP a copy shall be sent to the North Andover Conservation Commission. In the Matter of: Stephen McCarthy ACOP -NE -07-6W001 Page 4 i) This plan shall include but not necessarily be limited to: depth to seasonal high groundwater; proposed depth of excavation, list of native species to be planted, planting schematic, monitoring plan during and two -years after completion of restoration, protocols for re -plantings, and schedule or work. ii) The plan shall provide that the restoration shall be completed by June 17, 2007. Thereafter, Respondent shall implement the Restoration Plan as approved by the Department in accordance with the schedule approved by the Department. Restoration shall be supervised by a wetland scientist. Each failure to implement the Restoration Plan approved by the Department in accordance with the schedule shall be a separate stipulated penalty under this Consent Order iii) Monitoring of the wetland restoration site shall be done by a wetland scientist. Monitoring reports shall be submitted to the MassDEP and copied to the North Andover Conservation Commission at the end of each growing season, no later than October 315` of each year. Said monitoring reports shall include photographs of the restoration area. The final report shall submitted no later than October 31, 2009. B. All activity of stockpiling and storage of material in the Buffer Zone shall immediately cease until such time as Respondent files a Request for Determination of Applicability or Notice of Intent with the North Andover Conservation Commission, copied to Michael Abell at the address below, and receives a Determination of Applicability or Final Order of Conditions authorizing such activities within the Buffer Zone. 11. Except as otherwise provided, all notices, submittals and other communications required by this Consent Order shall be directed to: Michael Abell Department of Environmental Protection Northeast Regional Office 205B Lowell Street Wilmington, MA 01887 Such notices; submittals and other communications shall be considered delivered by Respondent upon receipt by the Department. 12. 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. In the Matter of: Stephen McCarthy ACOP -NE -07-6W001 Page 5 13. 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 H above. The Department hereby determines, and Respondent hereby agrees, that the deadlines set forth above constitute reasonable periods of time for Respondent to take the actions described. 14. Respondent shall pay to the Commonwealth a civil administrative penalty for the violations identified in Part H above, as follows: A. Within thirty (30) days of the effective date of this Consent Order, Respondent shall pay to the Commonwealth One Thousand Five Hundred dollars ($1,500.00); and B. If Respondent violates any provision of this Consent Order, or further violates any of the regulations cited in Part H above before October 31, 2009, Respondent shall pay to the Commonwealth the remaining amount of Five Thousand dollars ($5,000.00) 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. 15. Respondent understands, and hereby waives, its right to an adjudicatory hearing before the Department 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 Department. 16. This Consent Order may be modified only by written agreement of the parties hereto. 17. 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 the Department shall have the discretion to void this Consent Order in the event of any such invalidity. 18. 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 the Department 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 the Department to pursue any other 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 or judicial proceeding. In the Matter of: Stephen McCarthy ACOP -NE -07-6W001 Page 6 19. This Consent Order shall not be construed or operate as barring, diminishing, adjudicating, or in any way affecting, any legal or equitable right of the Department or Respondent with respect to any subject matter not covered by this Consent Order. 20. This Consent Order shall be binding upon Respondent and upon Respondent's heirs, successors and assigns. Respondent shall not violate this Consent Order and shall not allow or suffer Respondent's 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. 21. In addition to the penalty set forth in this Consent Order (including any suspended penalty), if Respondent violates any provision of the Consent Order, Respondent shall pay stipulated civil administrative penalties to the Commonwealth in the amount of $1,000.00 per day for each day, or portion thereof, each such violation continues. 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 the Department 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 the Department issues Respondent a written demand for payment. If a court judgment is necessary to execute a claim for stipulated penalties under this Consent Order, Respondent agrees to assent to the entry of such judgment. 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. The Department 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 the Department 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 the Department's determination that Respondent failed to comply with the Consent Order and/or to contest the accuracy of the Department's calculation of the amount of the stipulated civil administrative penalty. 22. Respondent shall pay all civil administrative penalties due under this Consent Order, including suspended and stipulated penalties, by certified check, cashier's check, or money order made payable to the Commonwealth of Massachusetts. Respondent shall clearly print on the face of its payment Respondent's full name, the file number appearing on the first page of this Consent Order, and the Respondent's Federal Employer Identification Number, and shall mail it to: In the Matter of: Stephen McCarthy ACOP -NE -07-6W001 Page 7 Commonwealth of Massachusetts Department of Environmental Protection Commonwealth Master Lockbox P.O. Box 3982 Boston, Massachusetts 02241-3982 Respondent shall simultaneously mail a copy of the payment to: Thomas Mahin Acting Deputy Regional Director Department of Environmental Protection 205B Lowell Street Wilmington, MA 01887 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. 23. Failure on the part of the Department to complain of any action or inaction on the part of Respondent shall not constitute a waiver by the Department of any of its rights under this Consent Order. Further, no waiver by the Department of any provision of this Consent Order shall be construed as a waiver of any other provision of this Consent Order. 24. Respondent agrees to provide the Department, and the Ddpartment'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, the Department retains all of its access authorities and rights under applicable state and federal law. 25. The undersigned certify that they are fully authorized to enter into the terms and conditions of this Consent Order and to legally bind the party on whose behalf they are signing this Consent Order. 26. This Consent Order shall become effective on the date that it is executed by the Department. In the Matter of. Stephen McCarthy ACOP -NE -07-6W001 Page 8 Consented To: Stephen McCarthy r By: G� Step n McCarthy 330 Campbell Road North Andovvl/ Andover, M. Id A01845 Date: %/ a -�> Fed. Tax. ID# 6 d s- 'f-7 Issued By: DEPARTMENT OF ENVIRONMENTAL PROTECTION By: j 6 24 Richard Chalpin Regional Director Department of Environmental Protection Northeast Regional Office 205B Lowell Street Wilmington, MA 01887 Date: (Z--)-�- / Q 7 s 82 '4 1 ceOpCOMMONWEALTH OF MASSACHUSETTS db EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION NORTHEAST REGIONAL OFFICE 205B Lowell Street, Wilmington, MA 01887 • (.978) 694-3200 MITT ROMNEY ROBERT W. GOLLEDGE, Jr. Governor Secretary KERRY HEALEY RECEIVED ARLEEN O'DONNELL Lieutenant Governor Acting Commissioner JAN p 470071 NORTH ANDOVER January 4, 2007 CONSERVATION COMMISSION Stephen McCarthy 330 Campbell Road North Andover, MA 01845 NOTICE OF ENFORCEMENT CONFERENCE THIS IS AN IMPORTANT NOTICE. FAILURE TO RESPOND TO THIS NOTICE COULD RESULT IN SERIOUS LEGAL CONSEQUENCES. Dear Mr. McCarthy: As you are aware, on October 24, 2006 MassDEP personnel conducted aninspection and/or made observations of your property at 330 Campbell Road in North Andover, Massachusetts. Based on the inspection and observations and MassDEP records, MassDEP has determined that you are in violation of one or more laws, regulations, orders, licenses, permits or approvals enforced by MassDEP. MassDEP requests that you attend an enforcement conference for the purpose of providing you with the opportunity to reach a negotiated agreement with MassDEP to bring the site into compliance and pay a civil administrative penalty as appropriate. Enclosed is a draft Administrative Consent Order describing the violations for your review. The enforcement conference will provide you with the opportunity to discuss the alleged violations and return to compliance and/or negotiate penalty conditions of a final enforcement document. MassDEP believes that prompt resolution of this enforcement case in a manner that ensures your expeditious return to compliance and resolves all penalty issues is beneficial and consistent with the MassDEP's environmental protection goals. Prompt settlement may also decrease the resources you and MassDEP might expend on protracted litigation of the issues. This information Is available in alternate format. Call Donald M. Gomes, ADA Coordinator at 617-556-1057. TDD Service 1-978-694-3492. http://www.mass.gov/dep • Fax (978) 694-3499 ��wl Printed on Recycled Paper Page 2 Enf. Conf. McCarthy Time for the conference has been reserved at: LOCATION: Hearing Room 2 MassDEP Northeast Regional Office 205B Lowell Street Wilmington, MA 01887 DATE: Wednesday, January 24, 2007 TIME: 10:00 A.M. If you either do not attend the enforcement conference or do not reach a negotiated settlement, MassDEP will initiate appropriate enforcement action and you will have limited, if any, further opportunity to reach a negotiated settlement of this case. Please contact Mr. Michael Abell at 978-694-3257 by close of business on Wednesay, January 17, 2007, to confirm your attendance at the enforcement conference, or if you have any questions about this matter. If you plan to be represented by counsel at the conference, please indicate that when you contact this office so that we may arrange to have an attorney present. Sincerely, Thomas D. Mahin Acting Deputy Regional Director Bureau of Resource Protection TDM/ees enclosure COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION In the matter of: ) Stephen McCarthy ) ACOP -NE -07-6W001 ADMINISTRATIVE CONSENT ORDER WITH PENALTY AND NOTICE OF NONCOMPLIANCE I. THE PARTIES 1. The Department of Environmental Protection ("Department" or "MassDEP") is a duly constituted agency of the Commonwealth of Massachusetts established pursuant to M.G.L. c. 21 A, § 7. The Department maintains its principal office at One Winter Street, Boston, Massachusetts 02108, and its Northeast Regional Office at 205B Lowell Street, Wilmington, MA, 01887. 2. Stephen McCarthy ("Respondent") is an Individual who resides at 330 Campbell Road in North Andover, Massachusetts. Respondent's mailing address for purposes of this Consent Order is 330 Campbell Road, North Andover, MA 01845. H. STATEMENT OF FACTS AND LAW 3. The Department is responsible for the implementation and enforcement of M.G.L. c. 131, § 40 ("WPA")and the Wetlands Regulations at 310 CMR 10.00. The Department has authority under M.G.L. c. 21A, § 16 and the Administrative Penalty Regulations at 310 CMR 5.00 to assess civil administrative penalties to persons in noncompliance with the laws and regulations set forth above. 4. Respondent is the Owner of 330 Campbell Road, North Andover, MA which is identified by the North Andover Assessor's Office as Map 106D; Block 0025 ("Site"). Respondent operates a Landscaping business at the site (McCarthy's Landscaping). 5. The following facts have led the Department to issue this Consent Order: In the Matter of. Stephen McCarthy ACOP # Page 2 A. Based on information obtained from recent aerial photographs indicating changes to a wetland resource area, MassDEP staff conducted an inspection of the Site on October 24, 2006. B. Observations made during the inspection of the site confirmed that 252 square feet of Bordering Vegetated Wetland (`BVW') had been filled. C. No Notice of Intent or Request for Determination of Applicability was filed for the site. D. The WPA at paragraph 1 provides in relevant part: "No person shall remove, fill ... or alter any bank, fresh water wetland, coastal wetland, dune, salt marsh, meadow or swamp bordering any estuary, creek, river, stream, pond, or lake, or any land under such waters ... other than in the course of maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public ... without filing written notice of his intention to so remove, fill dredge or alter, including such plans as may be necessary to describe such activity and its effect on the environment and without receiving and complying with an order on conditions ..." E. The WPA at paragraph 27 provides in relevant 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 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. Each day such violation continues shall constitute a separate offense ..." F. The WPA also provides that anyone who violates any provision of the WPA may be ordered to restore the affected property to its original condition and to take other action to remedy the violation. G. The WPA further provides that whoever violates the WPA shall be subject to a civil administrative penalty of up to Twenty-five Thousand Dollars and No/100 ($25,000) for each violation. H. The Regulations, specifically the provisions of 310 CMR 10.02 (2)(a) provides in relevant part: "Any activity proposed or undertaken within an area specified in 310 CMR 10.02 (1) [Areas Subject to Protection Under the Act] which will remove, fill, dredge or alter that area is subject to regulation under the Act and requires the filing of a Notice of Intent". t In the Matter of Stephen McCarthy ACOP # Page 3 I. The Regulations, at 310 CMR 10.08 (1)() provides in relevant part: ...Violations include, but are not limited to: ... failure to obtain a valid Final Order or Extension Permit prior to conducting an Activity Subject to Regulation Under M.G.L. c. 131, sect 40 as defined in 310 CMR 10.02 (2). J. The Regulations, specifically the provisions of 310 CMR 10.55(4)(a), provide that no work proposed within a BVW shall destroy or otherwise impair any portion of said BVW. K. By filling and altering BVW without filing a Notice of Intent for and obtaining a Final Order under the WPA authorizing the this alteration, Respondent violated the WPA and the Wetlands Regulations 310 CMR 10.02, 310 CMR 10.08, and 310 CMR 10.55 (4) (a). L. By failing to restore the wetlands to their condition prior to the unauthorized alteration, the Respondent has violated and continues to violate the WPA. III. DISPOSITION AND ORDER For the reasons set forth above, the Department hereby issues, and Respondent hereby consents to, this Order: 8. 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. 9. The Department's authority to issue this Consent Order is conferred by the Statutes and Regulations cited in Part II of this Consent Order. 10. Respondent shall perform the following actions: A. . On or before, March 1, 2007, Respondent shall submit to the Department for review and approval a plan prepared by a wetland scientist to restore 252 square feet of BVW in accordance with the Department's Massachusetts Inland Wetland Replication Guidelines ("Restoration Plan"). Once the restoration plan has been approved by MassDEP a copy shall be sent to the North Andover Conservation Commission. In the Matter of. Stephen McCarthy ACOP # Page 4 i) This plan shall include but not necessarily be limited to: depth to seasonal high groundwater; proposed depth of excavation, proposed depth of organic soils, source of organics, list of native species to be planted, planting schematic, monitoring plan during and two -years after completion of replication, protocols for re - plantings, and schedule or work. ii) The plan shall provide that the replication shall be completed by June 17, 2007. Thereafter, Respondent shall implement the Restoration Plan as approved by the Department in accordance with the schedule approved by the Department. Restoration shall be supervised by a wetland scientist. Each failure to implement the Replication Plan approved by the Department in accordance with the schedule shall be a separate stipulated penalty under this Consent Order iii) Monitoring of the wetland restoration site shall be done by a wetland scientist. Monitoring reports shall be submitted to the MassDEP and copied to the North Andover Conservation Commission at the end of each growing season, no later than October 31" of each year. Said monitoring reports shall include photographs of the restoration area. The final report shall submitted no later than October 31, 2009. B. On or before April 1, 2007 Respondent shall file for a Request for Determination with the North Andover Conservation Commission, copied to Michael Abell at the address below, to permit the business activities within the Buffer Zone. 11. Except as otherwise provided, all notices, submittals and other communications required by this Consent Order shall be directed to: Michael Abell Department of Environmental Protection Northeast Regional Office 205B Lowell Street Wilmington, MA 01887 Such notices, submittals and other communications shall be considered delivered by Respondent upon receipt by the Department. 12. 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. 1 In the Matter of: Stephen McCarthy ACOP # Page 5 13.. For purposes of M.G.L. c. 21 A, § 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. The Department hereby determines, and Respondent hereby agrees, that the deadlines set forth above constitute reasonable periods of time for Respondent to take the actions described. 14. Respondent shall pay to the Commonwealth the sum of XXX dollars ($XXX.00) within thirty (30) days of the effective date of this Consent Order as a civil administrative penalty for the violations identified in Part H above. This paragraph shall not be construed or operate to bar, diminish, adjudicate, or in any way affect, any legal or equitable right of the Department 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. 15. Respondent understands, and hereby waives, its right to an adjudicatory hearing before the Department 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 Department. 16. This Consent Order may be modified only by written agreement of the parties hereto. 17. 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 the Department shall have the discretion to void this Consent Order in the event of any such invalidity. 18. 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 the Department 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 the Department to pursue any other 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 or judicial proceeding. 19. This Consent Order shall not be construed or operate as barring, diminishing, adjudicating, or in any way affecting, any legal or equitable right of the Department or Respondent with respect to any subject matter not covered by this Consent Order. 20. This Consent Order shall be binding upon Respondent and upon Respondent's heirs, successors and assigns. Respondent shall not violate this Consent Order and shall not allow or suffer Respondent's employees, agents, contractors or consultants to violate this Consent Order. Until Respondent has fully complied with this Consent Order, Respondent shall provide a copy In the Matter of Stephen McCarthy ACOP # Page 6 of this Consent Order to each successor or assignee at such time that any succession or assignment occurs. 21. In addition to the penalty set forth in this Consent Order (including any suspended penalty), if Respondent violates any provision of the Consent Order, Respondent shall pay stipulated civil administrative penalties to the Commonwealth in the amount of $1,000.00 per day for each day, or portion thereof, each such violation continues. 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 the Department 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 the Department issues Respondent a written demand for payment. If a court judgment is necessary to execute a claim for stipulated penalties under this Consent Order, Respondent agrees to assent to the entry of such judgment. 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. The Department 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 the Department 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 the Department's determination that Respondent failed to comply with the Consent Order and/or to contest the accuracy of the Department's calculation of the amount of the stipulated civil administrative penalty. 22. Respondent shall pay all civil administrative penalties due under this Consent Order, including suspended and stipulated penalties, by certified check, cashier's check, or money order made payable to the Commonwealth of Massachusetts. Respondent shall clearly print on the face of its payment Respondent's full name, the file number appearing on the first page of this Consent Order, and the 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 Respondent shall simultaneously mail a copy of the payment to: I* In the Matter of. Stephen McCarthy ACOP # Page 7 Thomas Mahin Acting Deputy Regional Director Department of Environmental Protection 205B Lowell Street Wilmington, MA 01887 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. 23. Failure on the part of the Department to complain of any action or inaction on the part of Respondent shall not constitute a waiver by the Department of any of its rights under this Consent Order. Further, no waiver by the Department of any provision of this Consent Order shall be construed as a waiver of any other provision of this Consent Order. 24. Respondent agrees to provide the Department, and the Department'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, the Department retains all of its access authorities and rights under applicable state and federal law. 25. The undersigned certify that they are fully authorized to enter into the terms and conditions of this Consent Order and to legally bind the party on whose behalf they are signing this Consent Order. 26. This Consent Order shall become effective on the date that it is executed by the Department. Consented To: Stephen McCarthy By: Stephen McCarthy 330 Campbell Road North Andover, MA 01845 Date: Issued By: In the Matter of: Stephen McCarthy ACOP # Page 8 DEPARTMENT OF ENVIRONMENTAL PROTECTION By: Richard Chalpin Regional Director Department of Environmental Protection Northeast Regional Office 205B Lowell Street Wilmington, MA 01887 Date: DATE AND TIME OF CALL: 711 9 o6 NAME: L;bt� jun FIRM/AGENCY: -D p -p PROJECT LOCATION: cep �e-i I -Rd , TELEPHONE #: X79-00,3,19� SUBJECT: C�- oSS;� (e, v►o`aoh � wt-,4lcw,jjs ohmP l 1I j (c ii .L ( I I k" LXaLT G.d�� trSS �vl� T�VWa� ��d 1 occu Mof o 1 �t-aGhe-d U°- �Oca.l �ShowS o` �6a"� w1 'rr-r� an s��tL� nh ��+� l aIId ha+ `00K f I JCB A,'l Ick 1 lrvµn i p 6 tt 47/10/2006 MBD 14:14 FAX TO: 0001/002 COMMOWMALTH OF MASSAM. 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Day Ad Time M• M 7- Z. Of D� Phone FAX Area Code Number Extension MOBILE Area Code Number Extension Telephoned Returned your call RSH Came to see you Please call Special attention Wants to see you Will call again Caller on hold Jill r i� is A" 12 3,30 C,,,-, W 48023 LITHO IN U.S.A. j - - Town of North Andover Office of the Conservation Department Community Development and Services Division Alison McKay Conservation Associate April 9, 2003 Stephen McCarthy 330 Campbell Road North Andover, MA 01845 27 Charles Street North Andover, Massachusetts 01845 VIA Certified Mail ## 7002 0510 0000 0894 3384 Telephone (978) 688-9530 Fax (978) 688-9542 RE: Violation of the Massachusetts Wetland Protection Act (M.G.L. C.131 S.40) and The North Andover Wetlands Protection Bylaw (C. 178 of the Code of North Andover). Dear Mr. McCarthy: On March 25, 2003 this department observed several work trucks in your driveway associated with tree cutting activities and heard tree cutting activities to the rear of your property. Although it was not confirmed prior to this observation if wetland resource areas existed to the rear of the property or not where activities were zcc'� i m a of wetlandzesmum areas .in the vicinity of your property. Knowing this, I had questioned someone (presumably a contractor) in regards to the activities. I was told that activities were restricted to "clearing wood piles". I did not quite understand the meaning of such explanation. On April 7, 2003 the department further observed significant fresh wood piles beyond the fenced entrance. Upon an in-house review of our filings and maps, it appears as though there may be - wetlands or their associated buffer zones where activities had occurred. Please be aware that any land altering activities proposed or conducted within 100 feet of a Bordering Vegetated Wetland is subject to a Request for Determination of Applicability or a Notice of Intent filing with the North Andover Conservation Commission (Sections V and VI of the North Andover Regulations). Section .I1(b) -of the North Andover Wetlands.Pmtection Bylaw, states that an "alteration" includes, but is not limited to, the placement of fill, excavation, or regrading. Furthermore, The North Andover Wetlands Protection Bylaw prohibits any activity, including tree cutting, within 25 feet of a wetland resource area (Section III (D) (4a)). Please contact me immediately at (978) 688-9530 to set up an inspection so that this department may accurately determine if wetland resource areas exist on the property and their boundaries. Failure to comply with the above mentioned request may result in additional penalties and / or fines of up to $100 / day starting from the irlifal observation pursuant to the NorthAndover Wetlands Protection Bylaw, Section 178.10 (A)(Page 8). BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 Thank you for your anticipated cooperation. Sincerely, Alison E. McKay Conservation A,$soeiate Cc: NACC Julie Parrino, Conservation Administrator Heidi Griffin, Communit :Development Director Michael McGuire, Building. Inspector File