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4.09 4.9 AGREEMENTSTonsent Order-DEC-Hovey Pond—Solitude Lake Management—5-21-18 RESOLUTION AUTHORIZING EXECUTION OF DEPARTMENT OF ENVIRONMENTAL CONSERVATION CONSENT ORDER REGARDING TREATMENT OF HOVEY POND RESOLUTION NO.: ,2018 INTRODUCED BY: WHO MOVED ITS ADOPTION SECONDED BY: WHEREAS, by Resolution No.: 100,2016, the Queensbury Town Board authorized engagement of Solitude Lake Management (Solitude) for an Aquatic Vegetation Management Program for Hovey Pond to be phased in over five years, such Program providing for herbicide treatment for control of nuisance aquatic vegetation, including Solitude's administration of Aquathol- Super K treatment, Copper Sulfate and Rodeo, mechanical removal and disposal of emergent plants, and DEC permitting fees, and WHEREAS, DEC issued a DEC Freshwater Westland and Aquatic Pesticide Permits to the Town authorizing the treatment of Hovey Pond with certain pesticides administered by Solitude, and WHEREAS, DEC inspected Hovey Pond after treatment and identified two minor permit violations, and WHEREAS, Solitude admitted the violations and addressed them in a manner satisfactory to DEC, and WHEREAS, Town Counsel has successfully negotiated provisions of a Consent Order to resolve this matter to include "non-admission" terms and payment of the $1500 fine solely to DEC by Solitude, and WHEREAS, the Town wishes to authorize entering into the Consent Order, NOW, THEREFORE, BE IT RESOLVED, that the Queensbury Town Board hereby approves and authorizes a Consent Order concerning Solitude Lake Management's Aquatic Vegetation Management Program for Hovey Pond upon acknowledgment that Solitude has admitted the violations and is paying the fine, and BE IT FURTHER, RESOLVED, that the Town Board authorizes and directs the Town Supervisor to sign the Consent Order substantially in the form presented at this meeting and any other necessary documentation needed to resolve this matter, and BE IT FURTHER, RESOLVED, that the Town Board further authorizes and directs the Town Supervisor, Director of Parks and Recreation, Budget Officer and/or Town Counsel to take such other and further action as may be necessary to effectuate the terms of this Resolution. Duly adopted this 21St day of May, 2018,by the following vote: AYES NOES ABSENT: RESOLUTION AUTHORIZING ENGAGEMENT OF SOLITUDE LAKE MANAGEMENT FOR PROVISION OF HERBICIDE TREATMENT FOR CONTROL OF NUISANCE AQUATIC VEGETATION AND INVASIVE PLANTS IN CONNECTION WITH AN AQUATIC VEGETATION MANAGEMENT PROGRAM FOR HOVEY POND RESOLUTION NO.: 100,2016 INTRODUCED BY: Mr. William VanNess WHO MOVED ITS ADOPTION SECONDED BY: Mr. Brian Clements WHEREAS, the Town of Queensbury's Director of Parks and Recreation and Recreation Commission, with the assistance of Chazen Engineering, have proposed a plan to be phased in over five years to control nuisance aquatic vegetation and invasive plants at Hovey Pond Park in order to improve the water quality and control of invasive vegetation in the water and along the shoreline, and WHEREAS, by previous Resolutions, the Town Board has authorized engagement of Solitude Lake Management, formerly known as Allied Biological, for the Aquatic Vegetation Management Program for Glen Lake within the Town for herbicide treatment for control of Eurasian water milfoil and Illinois pondweed within portions of Glen Lake, and WHEREAS, in Chapter 3(C)(2)(f) of the Town Purchasing Procedures, upon the Town Board considering the reasonableness of the fee, it may engage a particular professional which was previously used without soliciting multiple vendors, and WHEREAS, the Town Board therefore wishes to engage the services of Solitude Lake Management for an Aquatic Vegetation Management Program for Hovey Pond in accordance with Solitude Lake Management's February 5, 2016 proposal presented at this meeting, and WHEREAS,the Town will adhere to all New York State Law bidding requirements, and NOW, THEREFORE,BE IT RESOLVED, that the Queensbury Town Board reviewed SEQRA and determines that there shall be a Negative Declaration, and BE IT FURTHER, RESOLVED, that the Queensbury Town Board hereby authorizes engagement of Solitude Lake Management for an Aquatic Vegetation Management Program for Hovey Pond to be phased in over five years, such Program to provide for herbicide treatment for control of nuisance aquatic vegetation including various species of Pondweeds and invasive plants, in accordance with Solitude Lake Management's February 5, 2016 proposal presented at this meeting, for a cost of$14,200 for 2016, and up to a total cost of $41,900 over five years, which includes Solitude Lake Management's administration of the Aquathol-Super K treatment, Copper Sulfate and Rodeo, mechanical removal and disposal of emergent plants, and DEC permitting fees of $1,500, contingent upon the Town's receipt of a proper certificate of insurance in form acceptable to the Town, and the final agreement to also be in form acceptable to the Town Supervisor and Town Counsel, and BE IT FURTHER, RESOLVED, that the Town Board authorizes and directs the Town Budget Officer to pay expenses incurred from appropriations in the Hovey Pond Misc. Contractual Account No.: 146- 7110-2899 not to exceed $14,200 for 2016 and/or take any actions necessary to provide for such payment, and BE IT FURTHER, RESOLVED, that the Town Board hereby authorizes a transfer from Recreation Assessment Reserve Fund No.: 61 in the amount of$11,000 for additional improvements and water quality upgrades at Hovey Pond to Hovey Pond Capital Park Improvement Fund No. 146 and authorizes and directs the Town Budget Officer to increase appropriations and make any other needed budget transfers in such accounts deemed necessary by the Town Budget Officer and/or Parks and Recreation Director, and BE IT FURTHER, RESOLVED, that the Town Board hereby finds that the withdrawal and expenditure for such Park improvements are expenditures for specific capital projects and certain maintenance projects for which the Reserve Account was established, and BE IT FURTHER, RESOLVED, that the Town Board further authorizes and directs the Town Supervisor to sign any needed documentation and the Town Supervisor, Town Budget Officer, Parks and Recreation Director and/or Town Purchasing Agent to take any and all action necessary to effectuate the terms of this Resolution,and BE IT FURTHER, RESOLVED, that this Resolution is subject to a permissive referendum in accordance with the provisions of Town Law Article 7 and the Town Board hereby authorizes and directs the Town Clerk to publish and post such notices and take such other actions as may be required by law. Duly adopted this 22nd day of February,2016,by the following vote: AYES : Mr. Clements,Mr. VanNess,Mr. Strough, Mr. Metivier NOES : None ABSENT: Mr. Irish STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter of the Violations of Articles 15, 17, 24 and 33 of the Environmental Conservation Law of the State of New York ("ECL"), Title 6 of the ORDER ON Official Compilation of Codes, Rules and Regulations. CONSENT of the State of New York ("6 NYCRR"), and Permit ID Numbers 5-5234-00141/00005 and 00006 Case No. -by- R5-20170531-2250 Town of Queensbury, Solitude Lake Management, LLC, and Robert Schindler, Respondents. WHEREAS: 1. The New York State Department of Environmental Conservation (the "Department") is a department of the State of New York vested with the jurisdiction to enforce the laws governing the control and prevention of water pollution pursuant to Article 17 of the Environmental Conservation Law ("ECL"), the registration, commercial use, purchase and custom application of pesticides pursuant to Article 33 of the ECL, to enforce laws governing regulated streams and navigable waters pursuant to Article 15 of the ECL, the rules promulgated pursuant those statutes at Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), any orders or permits issued pursuant thereto, and ECL § 3-0301. 2. The Department is further vested with jurisdiction regulating impacts to freshwater wetlands pursuant to Article 24 of the Environmental Conservation Law ("ECL"), the rules promulgated pursuant thereto at Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), any orders or permits issued pursuant thereto, and ECL § 3-0301. 3. It is also the responsibility of the Department to conserve, improve and protect New York State's natural resources and environment, and control water, land and Page 1 of 14 R5-20170531-2250 air pollution in order to enhance the health, safety and welfare of the people of the State of New York and their overall social and economic well-being. • 4. Respondent Town of Queensbury ("Respondent Town") is a municipal corporation with principal offices located at 742 Bay Road, Queensbury, NY 12804. 5. Respondent Solitude Lake Management, LLC ("Respondent LLC") is a foreign limited liability company with offices located around the country and an address for service of process in New York located at c/o Business Filings Incorporated, 187 Wolf Road, Suite 101, Albany, New York, 12205. • 6. Respondent Robert Schindler ("Respondent Schindler") is a Certified Pesticide Applicator, ID CO839093. 7. At the time of the events herein, Respondent LLC held a DEC business registration, number 16505. 8. For the purposes of the events described herein, Respondents Schindler and LLC had a business address at 338 Mather Road, Suite 1, Oneonta, New York 13820. 9. Respondents Schindler and Respondent LLC use and/or apply pesticide product(s) as the term "pesticide".is defined at ECL § 33-0101 (35). 10. Respondents are each a "person" as that term is defined at ECL §§ 15- 0107 (1), 17-0105 (1), 24-0107 (6), 33-0101 (33), 6 NYCRR 608.1 (y), 750-1.2 (66), 663.2(w), and 325.1 (au). 11. On June 21, 2016, the Department issued .DEC Freshwater Wetland Permit Number 5-5234-00141/00005 and Aquatic Pesticide Permit Number 5-5234- 00141/00006 to Respondent Town authorizing the treatment of Hovey Pond with, among other pesticides, Aquathol Super K (SLN NY-080005) ("the permits"). Page 2 of 14 R5-20170531-2250 12. Thereafter, Respondent Town retained the services of Respondents Schindler and LLC to apply the authorized pesticides to Hovey Pond. 13. The permits included the following conditions: a. 7.A. Posting of Warning Signs Prior to Aquathol Super K Treatment, which states in pertinent part: "The shoreline, and all public access sites including public boat launches, shall be posted with suitable signs bearing the water-use restrictions. The signs shall be posted for the duration of the water-use restrictions and must be removed no later than 5 days after the water-use restrictions have expired as determined by sample results and agreed upon in writing by the DEC." b. 8. Prohibited or Restricted Use of the Waters and Those Waters Affected by the Treatment. A. Aquathol Super K, which states in pertinent part: "Treated water shall be held for the duration of the water- use restrictions". c. 9. Water Sampling and Analysis, which states: "Water samples must be collected from within the Aquathol Supre K treatment site and analyzed for the concentration of endothall acid. A minimum of two sites shall be sampled during each sampling event. One sample site shall be near the outlet and the other shall be near the inlet. Samples must be collected one to two feet off the bottom and shall not be taken any closer • than ten feet from the shoreline. The GPS coordinates of each sample site shall be determined by the individual collecting the samples and the locations shall be provided to the Department with the results of the water sample analysis. Samples shall be collected no sooner than fourteen days after the Aquathol Super K treatment and shall continue every fourteen to twenty days thereafter until both samples indicate the endothall acid concentration is below 50 part[s] per billion (ppb). Results of the water sample analysis must be provided to the DEC pesticide Control Specialist Page 3 of 14 R5-20170531-2250 • • upon receipt. Water use restrictions cannot be lifted without prior written . concurrence from the DEC." 14. On June 30, 2016, Respondents Schindler and LLC applied 40 pounds of Aquathol Super K to Hovey Pond. 15. Via email dated August 8, 2016, Respondent LLC, through an employee, provided information indicating that Hovey Pond sampling identified no detectable endothall. The email did not include either the GPS coordinates of the sample site or the official label results of lab data sheets. 16. On August 10, 2016, staff replied by email and requested the information required by condition 9 of the permits. • 17. During an inspection on September 9, 2016, Department Pest Management Staff has identified the following violations of the permits: a. The shoreline of Hovey Pond was not posted with water use restriction signs. b. Staff observed and video-taped footage of water running into and out of Hovey Pond. 18. Via email dated September 9, 2016, Respondent LLC's employee admitted the violation of condition 9.of the permit by authorizing Respondent Town to open the valve that prevented water from flowing into or out of Hovey Pond during the treatment period. 19. A follow-up email from the lab on the same day reflected only one sample from Hovey Pond for endothall, with no GPS coordinates; the information provided reflected that the sample had been taken on July 27, 2016 and analyzed on August 8, 2016, although it was not provided to Department staff until September 9, 2016. Page 4 of 14 R5-20170531-2250 20. On September 12, 2016, Department staff sent an email to Respondents LLC and Town stating that the water use restrictions could be lifted and the water use restriction signs were to be removed before September 17, 2016. 21. Pursuant to 6 NYCRR 327.5, the "[f]ailure to abide by the terms of[an aquatic pesticides] permit or the application of chemicals without a permit shall be deemed to be in violation of the provisions of article 17 of the Environmental Conservation Law". 22. Pursuant to 6 NYCRR 663.10 (a), "[n]o person shall violate the terms or conditions of either a [wetlands] permit or a letter of permission". 23. Respondents' actions as set forth herein constitute violations of 6 NYCRR § 327.5, 6 NYCRR § 663.10 (a), and conditions 7.A., 8.A. and 9 of the permits. 24. ECL § 71-1127 provides, in pertinent part, that any person who violates any of the provisions of, or who fails to perform any duty imposed by Article 15 shall be liable for a civil penalty of not more than $2,500.00 for such violation and an additional civil penalty of not mare than $500.00 dollars for each day during which such violation continues, and in addition thereto such person may be enjoined from continuing such violation. 25. Pursuant to ECL § 71-1929 (1), any person who violates any of the provisions of Titles 7 or 8 of Article 17 of the ECL shall be liable for a penalty of up to thirty-seven thousand five hundred dollars ($37,500.00) per day for each violation. 26. Pursuant to ECL § 71-2907 (1), any person who violates any provision of Article 33 or the rules or regulations promulgated pursuant thereto, shall be liable for a penalty of not more than $5,000 for a first violation and not more than $10,000 for a . subsequent violation. Page 5 of 14 R5-20170531-2250 27. Pursuant to ECL § 71-2303, any person who violates, disobeys or disregards any provision of article 24 or any rule or regulation shall be liable to the people of the state for a civil penalty of not to exceed $11,000 for every such violation. 28. Pursuant to the Department's Freshwater Wetlands Enforcement Policy (DEE-6), dated February 4, 1992, each distinct illegally conducted regulated activity that would independently require a permit, shall constitute a separate violation. 29. While Department staff take no position on the allocation of culpability as between the named Respondents, it is the understanding of Department staff that Respondent LLC has accepted responsibility for the violations stated herein. 30. Respondents hereby affirmatively waive their right to a hearing in this matter in the manner as provided by law, consent to the issuance of this Order and agree to be bound by the terms, provisions and conditions contained herein. NOW, being duly advised and having considered this matter, THE COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION HEREBY ORDERS THAT: I. PENALTIES A. Respondents are hereby assessed a civil penalty in the amount of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00). B. Respondents shall pay the amount of the penalties specified herein by certified check or money order made payable to "the Department of Environmental Conservation", and submitted simultaneously with this signed Order to the attention of Office of General Counsel, New York State Department • of Environmental Conservation, Region 5, 1115 NYS Route 86, P.O. Box 296, Ray Brook, New York 12977-0296. II. DEFAULT OF PAYMENT The penalty assessed in this Order constitutes a debt owed to the State of New York. Failure to pay the assessed penalty, or any part thereof, in accordance with the Page 6 of 14 R5-20170531-2250 .terms and schedule contained in this Order, may result in referral to the New York State Office of the Attorney General for collection of the entire amount owed (including suspended penalties, the assessment of interest, and/or a charge to cover the cost of collecting the debt), or referral to the New York State Department of Taxation and Finance, which may offset any tax refund or other monies that may be owed to you by the State of New York, by the penalty amount. III. COMPLIANCE Respondents' failure to comply fully and in a timely fashion with any provision, term, or condition of this Order on Consent shall constitute a default and a failure to perform an obligation under this Order and under the ECL and shall constitute sufficient grounds for revocation of any permit, license, certification or approval issued to Respondents by the Department. IV. COMPLIANCE VERIFICATION AFFIDAVIT Within thirty (30) days of completion by Respondents of all terms of this Order on Consent, Respondents shall each submit a signed and notarized Compliance Verification Affidavit, attached hereto and incorporated herein, certifying that the actions necessary to come into compliance with the applicable statutory requirements and the Department's rules and regulations, including any actions specified in this Order on Consent, have been completed. Such submission shall be submitted to the address specified in Paragraph I.B. of this Order on Consent. V. • RELEASE AND OTHER RIGHTS Upon completion of its terms, this Order settles only claims for civil or administrative penalties concerning the violations specifically set forth herein. Nothing contained in this Order shall be construed as barring, diminishing, adjudicating or in any way affecting (1) any legal, administrative or equitable rights or claims, actions, suits, causes of action or demands whatsoever that the Department may have against anyone other than Respondent(s); (2) any right of the Department to enforce administratively or at law or in equity, the terms, provisions and conditions of this Order; (3) any right of the Page 7 of 14 R5-20170531-2250 Department to bring any future action, either administrative or judicial, for any other violations of the ECL, the rules and regulations promulgated thereunder, or conditions contained in orders or permits, if any, issued by the Department to Respondent(s); (4) the summary abatement powers of the Department, either at common law or as granted pursuant to statute or regulation; (5) the Department's right to recover natural resource damages. VI. STANDARD PROVISIONS In addition to the provisions set forth in Paragraphs I through VII of this Order on Consent, Respondents shall comply with the standard provisions which are attached hereto and incorporated herein as material, integral and enforceable terms of this Order on Consent. VII. EFFECTIVE AND TERMINATION DATES The effective date of this Order shall be the date the Regional Director signs the Order on behalf of the Department. This Order shall terminate upon Respondents' full and timely compliance with all the terms of this Order on Consent. DATED: Ray Brook, New York (Effective Date) BASIL SEGGOS, Commissioner New York State Department of Environmental Conservation By: • Robert S. Stegemann Regional Director- Region 5 • • Page 8 of 14 R5-20170531-2250 • CONSENT BY RESPONDENT Respondent hereby consents to the issuing and entering of this Order without further notice, waives their right to a hearing herein, and agrees to be bound by the terms, conditions and provisions contained in this Order. • Robert Schindler, Respondent By (Signature): Print Name: Title: Date: ACKNOWLEDGMENT STATE'OF NEW YORK ) ) ss: COUNTY OF ) • On the day of in the year before me personally came Robert Schindler to me known to be the individual described in, and who executed the foregoing instrument, and he duly acknowledged that he executed same. • Notary Public Signature and Office of individual taking acknowledgment • • Page 9 of 14 R5-20170531-2250 CONSENT BY RESPONDENT Respondent hereby consents to the issuing and entering of this Order without further notice, waives their right to a hearing herein, and agrees to be bound by the terms, conditions and provisions contained in this Order. Solitude Lake Management, LLC, Respondent By (Signature): Print Name: • • Title: Date: ACKNOWLEDGMENT STATE OF NEW YORK ) ) ss: COUNTY OF ) On the day of in the year before me personally came to me known, who, being by me duly sworn, did depose and say that he resides in[include street address if there is one] ; that he is the of Solitude Lake Management, LLC, the business entity described in and which executed the above instrument; and that s/he signed his/her name thereto having authority to do so on behalf of the business entity described herein. • Notary Public Signature and Office of individual taking acknowledgment Page 10 of 14 R5-20170531-2250 CONSENT BY RESPONDENT Respondent hereby consents to the issuing and entering of this Order without further notice, waives their right to a hearing herein, and agrees to be bound by the terms, conditions and provisions contained in this Order. Town of Queensbury, Respondent By (Signature): Print Name: • Title: • Date: ACKNOWLEDGMENT • STATE OF NEW YORK ) • ) ss.: COUNTY OF ) On this day of , in the year , personally came , to me known, who being by me duly sworn did depose and say that (s)he resides at that (s)he is the of the Town of Queensbury, the municipal corporation described in and which executed the foregoing instrument; and that (s)he signed his/her name as authorized by said municipal corporation. • Notary Public Signature and Office of individual taking acknowledgment • Page 11 of 14 R5-20170531-2250 • STANDARD PROVISIONS • Communications. Except as otherwise specified in this Order, any reports, submissions, and notices herein required shall be made to: NYS Department of Environmental Conservation, Office of General Counsel, 1115 NYS Route 86, P.O. Box 296, Ray Brook, New York 12977. Access. For the purpose of monitoring or determining compliance with this Order, employees and agents of the Department shall be provided access to any facility, site, or records owned, operated, controlled or maintained by Respondent, in order to inspect and/or perform such • tests as the Department may deem appropriate, to copy such records, or to perform any other lawful duty or responsibility. Force Majeure. If Respondent cannot comply with a deadline or requirement of this Order, because of an act of God, war, strike, riot, catastrophe, or other condition which was not caused by the negligence or willful misconduct of Respondent and which could not have been avoided by the Respondent through the exercise of due care, Respondent shall apply in writing to the Department within 72 hours of obtaining knowledge of such fact and request an extension or modification of the deadline or requirement. Indemnity. Respondent shall indemnify and hold the Department, the State of New York, and their representatives and employees harmless for all claims, suits, actions, damages and costs resulting from the acts and/or omissions of Respondent, intentional, negligent, or otherwise, of every nature and description, arising out of or resulting from the compliance or attempted compliance with the provisions of this Order by Respondent or its employees, servants, agents, successors or assigns. • Modifications. No change in this Order shall be made or become effective except as specifically set forth by written order of the Commissioner, being made either upon written application of Respondent, or upon the Commissioner's own findings after notice and opportunity to be heard have been given to Respondent. Respondent shall have the burden of proving entitlement to any modification requested pursuant to this Standard Provision or the "Force Majeure" provision, supra. Respondent's requests for modification shall not be unreasonably denied by the Department, which may impose such additional conditions upon Respondent as the Department deems appropriate. Entire Agreement. This Order shall constitute the entire agreement of the Department and Respondent with respect to settlement of those violations specifically referenced herein. Binding Effect. The provisions, terms, and conditions of this Order shall be deemed to bind Respondent and Respondent's heirs, legal representatives, receivers, trustees in bankruptcy, successors and assigns.. Service. If Respondent is represented by an attorney with respect to the execution of this Order, service of a duly executed copy of this Order upon Respondent's attorney by ordinary mail shall be deemed good and sufficient service. Multiple Respondents. If more than one Respondent is a signatory to this Order, use of the term "Respondent" in these Standard Provisions shall be deemed to refer to each Respondent identified in the Order. Page 12 of 14 R5-20170531-2250 COMPLIANCE VERIFICATION AFFIDAVIT STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter of • Town of Queensbury, Solitude Lake Management, LLC, and Robert Schindler, Respondents. Robert Schindler , being duly sworn, did depose and say (Print Name) that I am the , of Solitude Lake Management, LLC and, as of (Print Title) this date, the Solitude Lake Management, LLC has complied with all the requirements of this Order on Consent Case No. R5-20170531-2250 dated (Effective Date) Signature of Officer or Representative Title of Officer or Representative • • Subscribed and sworn to before me On this day of , 2018 Notary Public Page 13 of 14 R5-20170531-2250 COMPLIANCE VERIFICATION AFFIDAVIT STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter of Town of Queensbury, Solitude Lake Management, LLC, and Robert Schindler, Respondents. • , being duly sworn, did depose and say (Print Name) that I am the , of the Town of Queensbury, and as of (Print Title) this date, the Town of Queensbury has complied with all the requirements of this Order on Consent Case No. R5-20170531-2250 dated (Effective Date) Signature of Officer or Representative Title of Officer or Representative Subscribed and sworn to before me On this day of , 2018 Notary Public • Page 14 of 14 R5-20170531-2250