In April 1991, defendant promised to give ANR a formal reply to the NOAV after consultation with his attorney. There was no further correspondence between defendant and ANR, DOH, or the Commission for at least five months. The agencies resumed enforcement efforts again in October and continued into the spring of 1992. Correspondence between defendant and the agencies continued through the end of hearings on May 11, 1993. The ELD found multiple violations of the Act 250 permit, Act 250, the MHP permit, and the MHP statute, and determined that the violations led to actual and potential harm to the environment public health, and public welfare.
Defendant raises four issues on appeal.
First, he argues that the penalties for actual and potential harm are based on conclusions not supported by the evidence or the findings of fact. Second, he claims that the failure of ANR to give him notice of the drainage swale violations precludes assessment of penalties for any violations of his permits resulting from the inadequacy of the swales, and that any alleged violation based on siltation of the swales is without support in the record. Third, he alleges that the ELD failed to consider appropriate mitigating factors in determining the amount of penalties imposed. Fourth, he claims that the ELD treated dissimilar violations identically. I. Defendant first claims that the ELD erred in assessing penalties against him because the conclusions upon which the penalties were based are not supported by the evidence or the findings of fact.