Providence County Superior Court PC-2012-5551
For Plaintiff: Marisa Desautel, Esq.
For Defendant: Timothy J. Robenhymer, Esq. Gregory L. Benik, Esq.
Before this Court is an appeal of a decision by the State of Rhode Island Department of Environmental Management's (DEM) Administrative Adjudication Division (AAD), dismissing a Notice of Violation (NOV) issued by DEM's Office of Compliance and Inspection (OC&I) against Stephen Tolias, John Wrenn, and Martin Petry (collectively, Respondents) regarding the breach of a dam and resulting wetlands and water quality impacts. DEM seeks a reversal of the AAD hearing officer's decision. Jurisdiction is pursuant to G.L. 1956 § 42-35-15. For the reasons stated below, this Court affirms the decision of the hearing officer.
Facts and Travel
The Dam Breach and Resulting Enforcement
Dam 397, New Pond Dam (the Dam), is located on Assessor's Plat 13, Lot 21 in the Town of Glocester, Rhode Island. (OC&I Ex. 12, at 2.) The property is owned by Respondent Tolias. Id. On April 3, 2006, OC&I inspected the Dam after receiving a complaint from the Glocester Public Works Director, Alan Whitford, that the Dam had failed. (In re Wrenn, John and Tolias, Stephen and Petry, Martin, AAD No. 08-006/FWE, Rhode Island Department of Environmental Management Administrative Adjudication Division Decision and Order, Sept. 26, 2012, (hereinafter, AAD Decision), at 1; OC&I Ex. 1.) Paul Guglielmino, senior sanitary engineer with OC&I's Dam Safety Program, and Adam Hill, environmental scientist with DEM Wetlands Compliance, inspected the Dam with Mr. Whitford and Captain David Laplante of the Glocester Police Department. (Tr. at 114, Jan. 17, 2012; OC&I Ex. 2, at 1; OC&I Ex. 3, at 2.)
According to Mr. Guglielmino's inspection report, the inspection revealed a breach (2006 breach) along the length of the Dam approximately twenty feet long and ten feet deep, appearing to be in the same location as prior breaches. (OC&I Ex. 2, at 1.) The inspection report additionally noted the presence of fill that had been placed along portions of the Dam. Id. Mr. Hill's inspection report additionally indicates that materials used in construction or filling of the Dam had washed into a nearby swamp, and there was an increased presence of sediment and silt in two downstream ponds. (OC&I Ex. 3, at 2.) A Glocester Police report from April 4, 2006 stated that Respondents Wrenn and Petry were engaged in backfilling to repair the Dam without a DEM permit to do so. (NOV ¶ 3.)
Bruce Ahern, senior environmental scientist with OC&I's Freshwater Wetlands Compliance Program, returned to the Dam with Mr. Hill on April 5, 2006 for a follow-up inspection, specifically related to the wetlands alterations. (OC&I Ex. 6, at 1.) Mr. Ahern observed the Dam breach and noted "various types of debris and/or fill material" present at the breach area, a drained New Pond, a dry spillway channel, and "deposition of gravel, sands, silts, sediments, and other soil material" in a downstream swamp, river channel, and downstream pond. Id. at 1-2.
On August 10, 2006, OC&I issued a Notice of Intent to Enforce (NOIE) to Respondents for the Dam failure and subsequent alleged wetlands and water quality impacts. (OC&I Ex. 9, at 1.) The NOIE additionally included remediation instructions, including engaging an engineer or land surveyor to prepare a plan for restoring the wetlands to their unaltered state. Id. at 2. The restoration never took place. (AAD Decision, at 2.)
On April 30, 2008, OC&I issued a NOV to Respondents for violations of the Rhode Island Inspection of Dams and Reservoirs Act, G.L. 1956 § 46-19-3 (for substantially altering a dam), the Rhode Island Fresh Water Wetlands Act, G.L. 1956 § 2-1-21 (for altering freshwater wetlands), and the Rhode Island Water Pollution Act, § 46-12-5 (for discharging pollutants into waters of the State), all without a DEM permit. (NOV, at 4-5.) The NOV ordered remediation, as the NOIE had, and additionally assessed a $33, 000 fine against Respondents. Id. at 5-6. Respondents Wrenn and Tolias sought a hearing on the NOV with AAD. (Compl. ¶ 5.)
2 The AAD Hearing
The hearing was held on January 17 and 18, 2012. (Compl. ¶ 7.) The first witness to testify was Mr. Ahern, a senior environmental scientist with OC&I's Freshwater Wetlands Compliance Program. (Tr. 8-9, Jan. 17, 2012.) Mr. Ahern visited the Dam site once, on April 5, 2006, to perform a follow-up inspection with Mr. Hill. Id. at 40-41. Mr. Ahern testified-based on his prior Biological Inspection Report and the NOV-that the OC&I site inspections revealed impact or alterations-filling-of a swamp, a riverbank wetland, and multiple ponds. Id. at 37-39.
Specifically, Mr. Ahern testified he observed that a
"large hole had blown through the dam, and the material that was on the [D]am was transported downstream, down slope into the swamp and into the streams . . . [and] all of the water drained out of the pond and carried-that water was then carried downstream along with the materials that it, you know, that were eroded away from the [D]am itself." Id. at 42.
In regard to the wetlands and water quality violations, he testified that he observed "deposit of nonnative sand and sediments and silt material in the areas downstream of the [D]am, in the river, the swamp, the riverbank wetland and a pond." Id. at 44-45. He explained that he was able to determine the extent of wetlands impact by comparison with "reference materials, such as aerial photographs." Id. at 46. Mr. Ahern additionally testified to conversations that he had with Mr. Tolias and Mr. Petry. Id. at 57-60. He and Mr. Tolias had discussed prior breaches of the Dam from 2000 through 2005, and Mr. Tolias had indicated that there had been "other parties" actually performing the physical repair work on some of the prior Dam breaches. Id. at 69, 71.
The Complaint Investigation Sheet drafted by Mr. Hill and introduced during Mr. Ahern's testimony was admitted as OC&I Exhibit 3 over the objections of Respondents' attorneys. Id. at 26. Those objections were based on hearsay in that Mr. Hill was not present to testify and the document itself contained hearsay statements by additional persons not present at the hearing. Id. at 21-22, 24-25. The hearing officer ultimately admitted the document as a full exhibit, but observed that the hearing:
"is an administrative hearing and the Rules of Evidence are somewhat relaxed, especially with the respect to hearsay, I'm going to admit the document with, obviously, the recognition that you gentlemen are free to cross Mr. Ahern on the points you've raised, and, also, I will give it the weight that I deem appropriate based upon your cross-examination of him on those points, okay."Id. at 26.
On cross-examination, counsel for Mr. Wrenn questioned Mr. Ahern on the aerial photographs that he utilized in determining the extent of the wetlands impacts. Id. at 81. Mr. Ahern explained that the purpose of the photographs is "to assess the character of the wetland, the freshwater wetlands that were existing in and around the dam, upstream, downstream, " and into the surrounding wetlands. Id. He stated that he used aerial photographs from 1999 and 2003 in reviewing the 2006 breach's impacts. Id. at 82. He admitted that any impacts occurring between 2003 and the 2006 breach would not be reflected by the 2003 aerial photographs, and he acknowledged that breaches had occurred between those time periods. Id. at 83-84.
DEM's second witness was Paul Guglielmino, senior sanitary engineer in OC&I's Dam Safety Program. Id. at 113-14. He testified that his first inspection of the Dam was in 2000, a "routine inspection" to examine the condition of the Dam, which Mr. Guglielmino identified as "poor" at that time. Id. at 116-17. He next inspected the Dam in 2002 in response to a complaint that the Dam had failed. Id. at 118. That inspection did reveal a breach in the Dam, but OC&I did not take any enforcement action because "if a dam failed, or partially failed, we have not required-the Department hadn't required that it be repaired, unless the remnants are causing some other problem, or could have caused a problem, like if it was partially failed and there was concern that further failure could cause more." Id. at 119.
Mr. Guglielmino returned to the Dam for a follow-up inspection in 2005 because he was in the area, and he observed that the previously breached portion of the Dam had been repaired. Id. at 119-20. He testified that DEM received another complaint of Dam failure in 2005, and then the final one in 2006-the instant complaint-in which he performed an inspection. Id. at 121-22. On cross-examination, Mr. Guglielmino indicated that, after his 2000 inspection, he believed that the Dam would fail at some future point if it went without maintenance. Id. at 135.
The final witness presented by DEM was Harold Ellis, a supervising environmental scientist with OC&I's Wetlands Program. (Tr. at 258, Jan. 18, 2012.) Mr. Ellis was involved with the 2006 breach from a supervisory standpoint, and he was involved in the preparation of the NOIE and the NOV. Id. at 260-62, 282. He testified regarding the decision to name the three Respondents in the NOIE and the NOV, naming Mr. Tolias as the owner of the Dam who had made prior repairs and naming Mr. Wrenn because his attorney had indicated that he provided funding and access for the Dam repair. Id. at 279, 287-88.
At the close of DEM's presentation of witnesses, Mr. Tolias' attorney moved for judgment as a matter of law under Super. R. Civ. P. 50 (Rule 50),  arguing that DEM failed to meet its burden of establishing that Mr. Tolias violated § 46-19-3 because no evidence had been submitted establishing that Mr. Tolias had substantially altered the Dam in 2005 or 2006. Id. at 314. He additionally argued that DEM's failure to prove a violation of § 46-19-3 favored dismissal of the allegations of the wetlands and water quality violations because those violations ¶owed from the alleged violation of § 46-19-3. Id. at 315. The hearing officer reserved judgment on the Rule 50 motion, preferring that the parties submit post-hearing memoranda to aid in clarification of the issues and evidence. Id. at 323.
Mr. Wrenn additionally moved for judgment as a matter of law. Id. at 325. In regard to the alleged wetlands violations, he argued that DEM had failed to present evidence distinguishing the wetlands damage from the 2006 breach and damage from prior incidents. Id. at 326. Additionally, he argued that DEM did not present any evidence that Mr. Wrenn engaged in physical alteration of the Dam, and he therefore could not be liable for substantial alterations to the Dam or for damages resulting from the breach. Id. at 330-31. The hearing officer similarly reserved judgment on Mr. Wrenn's motion, favoring a ruling after a full hearing and submission of post-hearing memoranda. Id. at 332-33.
The Respondents, specifically Mr. Tolias, put on only one witness, Mr. Tolias himself. Mr. Tolias testified that in 2002 he met with Mr. Guglielmino after the Dam breached. Id. at 338-39. He recalled that Mr. Guglielmino informed him that he would need to repair the Dam, although the repair could wait until after Mr. Tolias finished constructing his house. Id. at 339. He also stated that Mr. Guglielmino never told Mr. Tolias that he would need a permit to fill the Dam. Id. Mr. Tolias did testify that he undertook repairs to the Dam on one occasion, but did not elaborate. Id. at 340. At the end of Mr. Tolias' testimony, both Respondents rested. Id. at 344.
The AAD rendered its decision in IN RE: Wrenn, John and Tolias, Stephen and Petry, Martin, AAD No. 08-006/FEW on September 26, 2012. The hearing officer concluded that Respondents had not violated § 46-19-3 because the repairs engaged in by Mr. Tolias or other persons did not constitute substantial alterations to the Dam. (AAD Decision, at 11.)
Additionally, the hearing officer concluded that DEM had failed to present sufficient evidence to establish that Respondents had engaged in additional backfilling of the Dam, which allegedly was the reason for the excessive debris released to the downstream wetlands. Id. at 12. Therefore, the hearing officer concluded that DEM did not meet its burden of proving a violation of §§ 2-1-21 or 46-12-5 for allowing fill or pollutants into wetlands. Id. at 13. DEM filed a timely appeal with this Court. (Compl. ¶ 17.)
Standard of Review
This Court's review of a final agency action is guided by the Rhode Island Administrative Procedures Act (APA), § 42-35-15(g), which provides, in full:
"The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error or law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence ...