Thursday, April 14, 2016

NJDEP Issues a Drop-in-the-Bucket Fine to Ocean Dumpers Agate Construction, Inc.

Dumpers Defense --- They ALWAYS do it that way!

Thanks to the watchful citizens who documented the Deal Dumping Debacle, there was ample evidence to issue the strongest of penalties against the dumpers. While some action was taken by the NJ Department of Environmental Protection (NJDEP), we believe stronger actions should have been taken.

Here’s the update: 

1) The NJDEP fined Agate Construction only $14,000 for blatantly illegally dumping truck-loads of muck over 3 days into the ocean off Deal, NJ. The NJDEP publicly announced the fine on April 11. See press story here

2) Review the Administrative Order and Notice of Civil Administrative Penalty Assessment (AONOCAPA) *See Photos of the document below

3) Read COA’s review of the NJDEP action below. There are the numerous reasons why this action is disappointing:
Photo courtesy of Bill Senck - note the time stamp
  • The New Jersey Department of Environmental Protection (NJDEP) defined Agate’s conduct as MAJOR (the most serious), which increases the potential fine amount. Agate was caught red-handed *see photo above* by concerned citizens.
  • The NJDEP partly based their fine amount on the area of disturbance (approximately 2,700 square feet) yet there is no rationale for how this number was calculated. There is no indication that the NJDEP calculated the amount of irrecoverable material lost to the ocean. It appears that the NJDEP used the small area of ocean and beach that were dumped on (rather than the amount of material dumped) to come to this conclusion.
  • The NJDEP did not assess the potential toxicity of the material (only a rough analysis of the grain size was conducted).
    • How can the NJDEP issue a proportional fine when there is no measurement of the material Agate dumped?
    •  How can the NJDEP issue a proportional fine when there is no indication of the makeup of the material?
  • The NJDEP calculated the fine amount at $7,000 per day and multiplied it by 2 days, HOWEVER: Note that one of Bill Senck’s photos was taken on Wednesday, February 17, 2016. The NJDEP violation only accounts for dumping on the 18th and 19th of February. Agate was dumping into the ocean for at least an additional day, not accounted for in the NJDEP enforcement action. COA did share the photos and this fact with NJDEP
    • According to the $7,000.00/day fine calculation this would equal $21, 000.00.
  • COA sent a letter on March 11, 2016 to the NJDEP requesting action and a citation against Agate Construction, Inc. for a clear violation of the Clean Water Act. 
  • After receiving the Notice of Violation (NOV) on February 22, 2016, Manson Engineering (the contractor which hired Agate Construction, Inc.) requested that the NOV should be retracted because they believed that the blatant dumping was, “Consistent with all past work practices undertaken in which the NJDEP and USACE were in full awareness of without previous complaint.”
    • Agate Construction, Inc. argued that they were not at fault because they were, “Working within the specifications of the USACE contract.” NOTE: COA has obtained and reviewed the contract – and concludes that Agate Construction, Inc. was NOT within the outlined specifications and the NJDEP agrees.

Administrative Order and Notice of Civil Administrative Penalty Assessment

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