ANR v. White ( 2010 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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Secretary, }
Vermont Agency of Natural Resources, }
Plaintiff, }
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v. } Docket No. 36-2-08 Vtec
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Rodney White, }
Respondent. }
Decision and Order on Motions for Sanctions
The Secretary of the Agency of Natural Resources and Respondent entered into
an Assurance of Discontinuance (AOD) to resolve violations involving a failed
wastewater system at Respondent’s mobile home park, Green Mountain Mobile Manor,
and the resulting discharge to waters of the state. The AOD was entered as a court
order on February 26, 2008 (the 2008 AOD Court Order). See 10 V.S.A. § 8007 (stating
that when the AOD is “signed by the environmental court, the assurance shall become a
judicial order”); see also generally 10 V.S.A. Chapter 201 (governing “Administrative
Environmental Law Enforcement”). On December 11, 2008, the Agency of Natural
Resources (ANR) filed a petition for an order to show cause why Respondent should
not be held in contempt for failing to comply with the 2008 AOD Court Order.
The Secretary is represented by John Zaikowski, Esq. Respondent was
represented by Andrew Carter, Esq.1 Intervenors Donald Bletz, Carol Bletz, and Bruce
Van Guilder are represented by Sigismund Wysolmerski, Esq.
1 Respondent was represented by Attorney Carter through a telephone hearing held on
an audio-taped record on September 28, 2009, at the close of which Attorney Carter was
granted leave to withdraw.
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A contempt hearing was conducted by Judge Merideth Wright in person at the
Rutland District Court, with an audio-taped record, on January 29, 2009, in the above-
captioned case. At that hearing, Respondent Rodney White was found in contempt of
the 2008 AOD Court Order that had been based upon the Assurance of Discontinuance
agreed to by Respondent and the ANR. A Contempt Order was issued on January 30,
2009, requiring weekly inspections of the wastewater system at the mobile home park,
reporting of the results of the inspections to the Regional Engineer, and immediate
pumping and hauling of wastewater to an approved disposal facility in the event of
surfacing sewage.
The Contempt Order scheduled a conference that was held by telephone, with an
audio-taped record, on February 9, 2009, to consider whether Respondent would be
installing a replacement wastewater system or connecting to a municipal system, to
establish a schedule for the remedial work, and to consider sanctions if the work did not
proceed on schedule. Further conferences to monitor Respondent’s compliance were
held on February 20, 2009, and February 23, 2009, resulting in a Revised Order of
Contempt and Compliance Schedule issued on February 27, 2009 (the February 2009
Contempt Order).
That order provided:
1. Respondent has been adjudged in Contempt of this Court for failure to
comply with the Court Order entered on February 26, 2008 on the basis of the
parties’ Assurance of Discontinuance. A coercive sanction of $50 per day is
hereby imposed from the date on which this Order is served on Respondent
to the date the sewer connection is placed in operation, to be purged upon
timely completion of such connection pursuant to this Order.
2. Until the sewer connection is placed in operation, Respondent shall continue
to have the disposal fields visually inspected twice weekly and the results
reported by telephone to the ANR Regional Engineer. Within 24 hours of any
event of surfacing sewage, Respondent shall have the system pumped and
the effluent hauled to a disposal facility. A coercive sanction of $290 is hereby
imposed for each instance of failure to comply with this paragraph. This
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sanction is set at this amount because it represents the cost of a single pump-
and-haul event; it is intended to remove any financial incentive for failing to
perform the inspection, the reporting, or the pumping and hauling.
3. No later than seven (7) consecutive calendar days following the date of
service of this Order, Respondent shall obtain estimates for all work needed
to complete construction of the connection of the Green Mountain Mobile
Manor wastewater to the Fair Haven Municipal Sewer System.
4. No later than ten (10) consecutive calendar days following the date of service
of this Order, Respondent shall hire all contractors and order all materials
needed to complete the connection of the Green Mountain Mobile Manor
wastewater to the Fair Haven Municipal Sewer System.
5. No later than thirty (30) consecutive calendar days following the date of
service of this Order, Respondent shall commence construction of the
connection of the Green Mountain Mobile Manor wastewater to the Fair
Haven Municipal Sewer System. No later than three (3) business days prior
to commencement of construction activities, Respondent shall notify ANR
Regional Engineer David Swift at ANR’s Rutland Regional Office ((802) 786-
5900), and shall inform the parties to this litigation, of the construction
commencement date.
6. No later than forty-five (45) consecutive calendar days following the date of
service of this Order, Respondent shall complete construction of the
connection of the Green Mountain Mobile Manor wastewater to the Fair
Haven Municipal Sewer System, in accordance with the approved permit
issued by the ANR on October 16, 2008, and shall place the connection in use.
7. In the event any of the above deadlines is anticipated not to be met, no later
than three (3) business days prior to such deadline Respondent shall so
inform ANR Regional Engineer David Swift at ANR’s Rutland Regional
Office ((802) 786-5900), and shall inform the parties and the Court that he will
be requesting an extension to such deadline through an amendment to this
court order. The Court will promptly schedule a telephone hearing on any
such amendment request; the parties shall discuss any such amendment
request with each other prior to the Court hearing.
Respondent was served with the February 2009 Contempt Order on March 3,
2009, making Thursday, April 2, 2009, the thirtieth calendar day after service of the
order, which was the date by which Respondent was to have commenced construction
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under paragraph 5 of the February 2009 Contempt Order. At no time prior to April 3,
2009, did Respondent notify the ANR Regional Engineer that the April 2, 2009
construction commencement deadline was anticipated not to be met, nor did
Respondent request an amendment to the schedule in the February 2009 Contempt
Order, as required by paragraph 7 of that order.
On September 28, 2009, a telephone hearing and oral argument on the issue of
sanctions was held, on an audio-taped record. Respondent stated that the delay in
commencing construction was due to waiting for the concrete to cure on a specially
ordered valve chamber, and that, as soon as it was ready, he had it picked up and taken
to the site. However, Respondent did not explain why he did not order it in time to
have the concrete cured within the thirty days. Nor did he explain why, when he
became aware that it would not be ready in time, he did not notify the ANR Regional
Engineer that the April 2, 2009 construction commencement deadline was anticipated
not to be met, or why he did not request an amendment to the schedule in the February
2009 Contempt Order, as provided in paragraph 7 of that order.
On April 3, 2009, the Regional Engineer inspected the system, observing that
construction had not commenced on the connection to the municipal sewer system, and
that sewage had surfaced and was continuing to surface on the ground in the northeast
and southwest areas of the system, although it was not discharging into state waters by
overland flow. Based on those observations, on April 3, 2009, the ANR requested that a
telephone conference be scheduled to address whether the deadlines imposed in the
February 2009 Contempt Order were being met; the conference was scheduled for April
8, 2009.
On Saturday, April 4, 2009, on Sunday, April 5, 2009, and on Monday, April 6,
2009, Respondent had the system pumped, and the effluent trucked to the Fair Haven
municipal wastewater treatment plant, at a cost of $190 for each of the two weekend
days, and a cost of $110 for the weekday. However, Respondent did not report to the
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ANR Regional Engineer that the system had been pumped. By April 6, 2009,
Respondent had brought a small excavator to the site to be ready to do the required
work, but had not broken ground for that work.
On April 6, 2009, the Regional Engineer again inspected the system, observing
that construction had not commenced on the connection to the municipal sewer system,
that the southwest area of the leach field was dry so that sewage was not surfacing, but
that sewage was surfacing on the ground in the northeast area of the system, although it
was not discharging into state waters by overland flow. The pumping and trucking
that had been done on April 4, 5, and 6, 2009, was therefore insufficient to remove all of
the wastewater produced by the system by the time of the April 6 inspection. As of that
time only one of the four areas of the system’s leach field was functioning; that area was
not adequate to handle the wastewater produced by the mobile home park.
Respondent had the system pumped again on April 7, 8, and 9, 2009. Construction on
the connection to the municipal sewer system commenced on April 9, 2009, by breaking
ground for the connection to the municipal system; the connection was put into
operation on April 10, 2009.
During a telephone conference held on April 8, 2009, Respondent reported that
he had been pumping and trucking the wastewater produced on the site, but that he
had not notified the ANR Regional Engineer of that activity. He reported that the costs
of the pumping and trucking were approximately $1000 per week. Respondent had not
requested an amendment to the schedule in the February 2009 Contempt Order to give
him more time to commence (or complete) construction. On April 8, 2009, the ANR also
filed a motion for sanctions for violations of the February 2009 Contempt Order (the
April Motion for Sanctions).
At the conclusion of the April 8, 2009 telephone conference, the Court instructed
the Agency to confer with the other parties and to provide a proposed schedule for
reporting pumping-and-hauling activities, to be included in a Supplemental Order. The
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Court scheduled weekly telephone conferences to begin on April 13, 2009, in order to
monitor Respondent’s compliance until the work would be completed. In addition, the
Court postponed setting a schedule for the parties to file memoranda regarding the
April Motion for Sanctions until compliance would have been achieved, so that the
parties and the Court would have final compliance dates and costs to use in
determining appropriate sanctions, if any.
As reflected on invoices from Doran Brothers, Inc., Respondent commenced
pumping and trucking wastewater on Saturday, April 4, 2009, and had the system
pumped and trucked to the Fair Haven wastewater treatment plant on April 5, 6, 7, 8
and 9, 2009. Respondent paid $110 per day for the service, plus an additional $80 per
day for an after-hours call out charge on both weekend days, April 4 and April 5, 2009,
for a total of $820. The April 10, 2009 cover letter from Attorney Carter to the ANR
Regional Engineer stated that the daily pumping and trucking would continue until the
hookup with the municipal system would be completed. However, also on April 10,
2009, the system was hooked up to the municipal sewer system and began operating,
for which Respondent paid an additional $330 for the rental and services of a crane
truck and a pump truck, as reflected in the invoice attached to Attorney Carter’s April
13, 2009 letter to the ANR Regional Engineer.2
At the April 13, 2009 conference, Attorney Carter, on behalf of Respondent,
reported that the connection to the municipal sewer system had been hooked up and
was working, but that the ditch still needed to be filled in and that two other elements
of the system still required work: a manhole cover near the road that had to be lowered
2 The letter refers to pumping as having continued through “Friday, April 9, 2009,”
with the hookup occurring on “Saturday, April 10, 2009.” However, April 9, 2009, was
a Thursday and April 10, 2009, was a Friday. Because the related Doran Brothers
invoice for the April 10 work does not include an “after hours service call out” charge,
as was charged for the previous weekend days, the Court concludes that the connection
was actually made on Friday, April 10, 2009.
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in elevation, and a valve chamber that possibly needed to be lowered in elevation below
frost level. The Court required the ANR and Respondent to report to the Court by letter
as to when the work would be completed, after which the Court intended to set a time
for briefing or argument of the April Motion for Sanctions.
As described by Respondent on the record of the September 28, 2009 telephone
hearing, as of an April 17, 2009 site visit, the pipes had been installed and the system
had been charged so that effluent was being pumped to the municipal wastewater
treatment system, but Respondent had questioned whether the pipes had been installed
at a sufficient depth to protect them from freezing. During the April 17, 2009 site visit,
Respondent’s plumbing contractor suggested that lowering the valve chamber would
remedy the problem. Respondent’s engineer and the ANR Regional Engineer agreed,
and the consequent changes to the valve chamber piping were the subject of a
stipulated schedule entered as a court order on June 1, 2009.
By letter from Attorney Carter to the Court, filed on April 22, 2009, Respondent
requested an extension to May 1 to “resolve the remaining issues to obtain final
certification of [the] sewer hookup,” stating that the system had been fully operational
“for over a week,” and that neither the ANR nor intervenors objected to the extension.
The Court granted the extension, and on May 1, 2009, granted the parties additional
time to file the amended agreed schedule.
The parties filed a Stipulated Scheduling and Compliance Order which was
signed as a court order on June 1, 2009 (the June 2009 Stipulated Court Order). The
June 2009 Stipulated Court Order set a schedule for the filing of memoranda on the
April Motion for Sanctions, and called for a certification of completion of the remaining
work on the modifications to the valve chamber piping to be filed by Respondent on
August 1, 2009. In the June 2009 Stipulated Court Order, the parties agreed that
Respondent had already completed the physical connection to the municipal sewer
system, but that the modifications to the valve chamber piping still had to be completed
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in order for the system to comply with its ANR-approved wastewater permit (#WW-1-
1818). The parties also agreed that Respondent had previously submitted receipts
documenting the disposal of effluent by pumping and trucking to an approved
wastewater disposal facility. The stipulation stated that, as of May 15, 2009,
Respondent had submitted certifications of completion of the site remediation and the
effluent filter installation, and had submitted the volume determinations required by a
condition of the ANR wastewater permit. The stipulation also stated that Respondent’s
engineer had submitted the final engineering drawings and certification, including a
notation that “the valve chamber piping modifications shall be completed by August 1,
2009.” The stipulation stated that the sole remaining issue for project completion was
the work on the valve chamber piping modifications.
The certification of completion of the valve chamber piping modifications was
not filed by August 1, 2009, and on September 8, 2009, the ANR again requested a
telephone conference to discuss the lack of that document; the conference was
scheduled for September 21, 2009. At the September 21, 2009 telephone conference, the
ANR reported that it had received electronic communications from Respondent’s
engineer that the work was complete, and that the ANR Regional Engineer expected to
receive the necessary documentation that day. The Court allowed the parties to file any
supplemental memoranda regarding the appropriate sanctions, and scheduled oral
argument on any pending motions for sanctions for September 28, 2009.
On September 24, 2009, the Secretary filed a second motion for sanctions (the
September Motion for Sanctions), addressing Respondent’s failure to comply with the
June 2009 Stipulated Court Order. The Court heard both motions for sanctions at the
September 28, 2009 telephone hearing, on an audio-taped record.
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Sanctions for Failure to Timely Comply with the February 2009 Contempt Order
The April Motion for Sanctions requested the Court to impose money penalties
under several paragraphs of the February 2009 Contempt Order. The ANR seeks
sanctions under paragraph 2 of the February 2009 Contempt Order in the amount of
$580, calculated as one payment of $290 for the surfacing sewage observed on April 3,
2009, and another payment of $290 for the surfacing sewage observed on April 6, 2009.
The ANR seeks sanctions in the amount of $150, calculated as $50 per day, for
Respondent’s failure to notify the ANR Regional Engineer three days in advance of the
commencement of construction that the deadline would not be met. The ANR seeks
sanctions in the amount of $1500, calculated as $50 per day, for Respondent’s failure to
commence construction during the allotted thirty-day period, as well as a penalty of
$100 per day for each day during which Respondent failed to commence construction of
the sewer connection after the required commencement date of April 2, 2009.
As a matter of fairness and respect for the many people in Vermont who comply
with the State’s environmental laws and regulations, as well as the many respondents
who enter into and comply with consent orders (assurances of discontinuance) under 10
V.S.A. § 8007, it is necessary to impose sanctions on those who agree to come into
compliance and then do not do so. See 10 V.S.A. § 8001 (purposes of Uniform
Environmental Enforcement Act include to “prevent the unfair economic advantage
obtained by persons who operate in violation of environmental laws” and to “provide
for more even-handed enforcement of environmental laws,” as well as to “foster greater
compliance with” and to “deter repeated violation of environmental laws,” and to
“enhance the protection of environmental and human health”).
The $820 Respondent expended to pump and haul sewage until the connection
to the municipal system was installed, as well as the $330 Respondent expended during
the installation, should not be set off against any sanctions that are appropriate for his
failure to comply with the February 2009 Contempt Order (or to seek an extension of
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any of the deadlines in that order). Those expenditures would not have been necessary
at all if Respondent had complied with the original 2008 AOD Court Order in the first
place.
Paragraph 2 of the February 2009 Contempt Order imposed a prospective
coercive sanction of $290 for each time Respondent failed to pump and haul within 24
hours of each event of surfacing sewage. The order stated that the sanction was
“intended to remove any financial incentive for failing to perform the inspection, the
reporting, or the pumping and hauling.” Accordingly, a sanction in the amount of $290
is due for the surfacing sewage observed by the ANR Regional Engineer on April 3,
2009, that had accumulated by that date.3 Although the pumping done on April 6, 2009,
was not sufficient to clear up all the surfacing sewage on that day, as the pumping was
done again within 24 hours, no additional sanction is appropriate for the surfacing
sewage observed on April 6, 2009.
Paragraph 5 of the February 2009 Contempt Order required Respondent to notify
the Regional Engineer three business days in advance of commencement of
construction, which was required to occur by April 2, 2009. Paragraph 7 of the
February 2009 Contempt Order required Respondent to notify the Regional Engineer
three business days in advance of any deadline that would not be met and to request an
extension of any deadline through an amendment to the court order. Respondent failed
to notify the ANR Regional Engineer under either paragraph, and failed to request the
Court to extend that deadline. The fact that Respondent was waiting for the specially
ordered concrete casting does not excuse his failure to notify the Regional Engineer, the
parties, and the Court in advance that the deadline would not be met. A sanction in the
3 Respondent did not show that no sewage had surfaced before that observation, or that
the pumping on April 4, 2009 was done within 24 hours of the time at which the sewage
had first begun to surface.
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amount of $150, calculated as $50 per day, is appropriate for this failure to comply with
these sections of the February Court Order.
Finally, paragraph 1 of the February 2009 Contempt Order imposed a
prospective purgeable coercive sanction of $50 per day from the date of service of the
Order on Respondent, which occurred on March 3, 2009, to the date on which the sewer
connection was actually placed in operation, which occurred 38 days later on April 10,
2009. Paragraph 1 provided that the penalty would be purged upon “timely
completion” of the connection pursuant to the February 2009 Contempt Order, that is,
thirty days after service, or April 2, 2009, as required by paragraph 5. As the
completion of the connection was not timely under the order, and Respondent did not
apply to the Court for an amendment of this deadline, this coercive sanction of $1900
became final and was not purged.
Accordingly, the monetary sanction imposed on Respondent for his failure to
timely comply with the February 2009 Contempt Order is a total of $2340.4
Sanctions for Failure to Timely Comply with the June 2009 Stipulated Order
In the September Motion for Sanctions, the ANR seeks sanctions under
paragraph D of the June 2009 Stipulated Contempt Order in the amount of $2500,
calculated as $50 per day from the August 1, 2009 date for completing modifications to
4 This amount is also reasonable in the context of several of the factors the Court must
consider when imposing a penalty in a contested administrative order case, rather than
one in which the respondent entered into a settlement order and subsequently failed to
comply with it. The amount of $2340 is adequate for deterrence, given the additional
costs Respondent incurred for doing the work necessary for compliance. In the present
case, the surfacing sewage represented at least a high degree of potential harm to
human health and the environment; Respondent knew or had reason to know the
violation existed; and Respondent received the economic benefit of avoiding the costs of
compliance for at least a year (from the 2008 AOD Court Order to the actual date of
connecting to the sewer system on April 10, 2009). See 10 V.S.A. § 8010(b), (c).
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the valve chamber piping and submitting the certification of completion, to the date the
conditional certification was actually issued by Respondent’s engineer on September 21,
2009.
Unlike the February 2009 Contempt Order, the June 2009 Stipulated Contempt
Order did not contain any coercive or prospective sanction. As the sewer connection
was operating during this time period, all of the issues in the original 2008 AOD Court
Order, in the January 2009 Contempt Order, and in the February 2009 Contempt Order
had been addressed. As of the September 28, 2009 oral argument, any prospective
issues regarding the modifications to the valve chamber piping had become moot, as
the piping was completed and filled, and all that remained was to grade, seed, and
mulch the soil surface.
Respondent’s engineer and plumbing contractor worked actively with the ANR
Regional Engineer during August and September of 2009 to address changes in the
design for the valve chamber piping. No additional contempt sanctions related to the
violations that are the subject of this case are warranted due to the delay in obtaining
the certification of the valve chamber piping modifications.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Respondent shall pay $2340 in sanctions for contempt, concluding this case.
Done at Berlin, Vermont, this 16th day of February, 2010.
_________________________________________________
Merideth Wright
Environmental Judge
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