ANR v. Colaceci ( 2015 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Environmental Division Unit Docket No. 23-3-15 Vtec
Docket No. 65-5-12 Vtec
Agency of Natural Resources,
Petitioner
v. DECISION ON MOTION
Robert Colaceci,
Respondent
Decision on the motions is SUSPENDED.
Pending before the Court is Respondent Robert Colaceci’s Request for Hearing, Motion
to Reopen, and Motion to Strike Administrative Order and Dismiss all Enforcement Actions.
These motions regard two separate dockets that are pending before this Court. Docket No. 65-
5-12 regards a 2012 administrative order (2012 AO) that the Agency of Natural Resources (ANR)
filed against Mr. Colaceci, alleging various violations of Mr. Colaceci’s solid waste facility
certification. Docket No. 23-3-15 regards a 2015 administrative order (2015 AO) ANR filed
against Mr. Colaceci for failing to re-certify his facility and continuing to accept used tires
without a renewed certification. Mr. Colaceci failed to timely file an appeal of the 2015 AO, and
it therefore became a final judicial order. His request for a hearing and motion to reopen regard
the 2015 AO, Docket No. 23-3-15. Mr. Colaceci’s motion to strike regards both enforcement
actions.
Mr. Colaceci operates a used tire and auto repair business on the Wolcott/Hardwick
town line. Mr. Colaceci received a solid waste facility certification for this business in 2009. In
May of 2012, ANR filed an administrative order with the Court alleging various violations of Mr.
Colaceci’s solid waste facility certification, including improper storage of used oil and failure to
properly store his used tires.
At the time of the 2012 AO, Mr. Colaceci was undergoing bankruptcy proceedings.
Because debtors undergoing bankruptcy ordinarily enjoy an automatic stay of all litigation
against them, see 11 U.S.C. § 362(a), ANR sought an order from the U.S. Bankruptcy Court
declaring that the enforcement action could proceed under the police and regulatory exception
to the automatic stay provisions. See 11 U.S.C. § 362(b). The Bankruptcy Court ultimately
decided that the environmental action could “proceed to seek remedies for non-compliance . . .
only insofar as it may order Debtors to take remedial actions or to come into compliance with
applicable provisions.” In re Colaceci, No. 12-10382cab, at 1 (Bankr. D. Vt. Mar. 3, 2014). The
Bankruptcy Court specifically enjoined this Court from “seeking to enforce or reduce to
judgment any civil penalties sought in connection with the [2012 AO].” Id. The Bankruptcy
Court also authorized ANR to move to modify its order. Id.Mr. Colaceci’s original solid waste certification (which the 2012 AO alleged he violated)
was due to expire in September of 2014, and therefore required Mr. Colaceci to file for re-
certification by the preceding April. Mr. Colaceci failed to file for a renewed certification by
April, though he did submit a renewal application several days before September 30. ANR
received the application on October 3. ANR determined this application to be “administratively
incomplete” and did not renew the certification.
After sending several reminders to Mr. Colaceci,1 the Agency sent an inspector to the
property in January of 2015. Mr. Colaceci accompanied the Agency inspector during her
inspection. Based on what the inspector found, ANR initiated a second administrative order in
February of 2015, alleging that Mr. Colaceci was still accepting used tires and therefore
“operating” a solid waste facility without a certification in violation of 10 V.S.A. § 6605(a)(1) and
Solid Waste Management Rules §§ 6-302(c) and 303. ANR also alleged that he had stockpiles
and trailers full of tires at the facility and that he was therefore storing solid waste without a
certification in violation of Solid Waste Management Rules § 6-302.2 The 2015 AO ordered Mr.
Colaceci to “implement the facility closure plan” and “complete closure, including removal of all
tires to a certified solid waste facility.” (Administrative Order at 3, filed Mar. 23, 2015). The
2015 AO also ordered that Mr. Colaceci disclose the account number for an $8,000 escrow
account that he had established as a condition of his original 2009 certification, which was
designed to assist with facility closure.
In late February, ANR moved for a continuance of the upcoming merits hearing on the
2012 AO, explaining that it was planning to file a new AO, and the new AO could affect the
disposition of the original 2012 AO. The Court granted the continuance. ANR served its second
AO on Mr. Colaceci on March 17, 2015. Mr. Colaceci did not respond to the AO within fifteen
days, as required by statute and rule. See 10 V.S.A. § 8012(c); V.R.E.C.P 4(d)(2). The AO
therefore became a final judicial order on April 16, 2015. See 10 V.S.A. § 8008(d).
Mr. Colaceci filed the present motion on May 26, 2015, seeking relief from the 2015 AO.
He argues that the judicial order entered on the 2015 AO should be set aside “in the interests of
justice,” citing V.R.C.P. 60(b). Among various other procedural and substantive arguments, Mr.
Colaceci argues that judgment on the 2015 AO would be unfair because he is “judgment proof”
and closing his facility would hurt his creditors. He also argues that the enforcement action is
contrary to his approved Chapter 13 plan.
The Court held a hearing on this motion on November 12, 2015 to address its concerns
over the scope of the 2012 Bankruptcy order; specifically, the Court is concerned that facility
closure (which the 2015 AO ordered) may go beyond the “remedial actions” authorized by the
Bankruptcy Court. In the hearing, the parties confirmed that Mr. Colaceci’s bankruptcy action is
still pending. Mr. Colaceci informed the Court that he is currently paying $5,600 per month to
the Bankruptcy Court as part of his plan. He also noted that his Chapter 13 plan had been
modified as at least as recently as November 9, 2015. ANR confirmed that it was willing to
move for a modification of the bankruptcy order to allow for facility closure.
After the hearing, the Court’s concerns remain. The Bankruptcy Court’s order specifically
authorizes these proceedings “only insofar as it may order Debtors to take remedial actions or
to come into compliance with applicable provisions.” In re Colaceci, No. 12-10382cab, at 1
(Bankr. D. Vt. Mar. 3, 2014). Closure may go beyond the scope of “remedial actions” and may
harm Mr. Colaceci’s creditors, especially given that Mr. Colaceci’s facility appears to still be
generating non-negligible income. Given that the Bankruptcy Court’s order specifically
authorizes ANR to move to modify the order, and given ANR’s expressed willingness to file such
a motion, this Court SUSPENDS consideration of Mr. Colaceci’s motions until ANR is able to
1
On October 13, 2014, the Agency sent Mr. Colaceci a notice of alleged violation for operating without a permit
and received no response from Mr. Colaceci. On November 10, 2014, the Agency sent Mr. Colaceci a letter
indicating that it intended to draw on an $8,000 escrow account at the Chittenden Bank that had been created in
2009 for the specific purpose of eventually closing the facility. The Agency received no response.
2
The Solid Waste Management Rules are codified at 16-3 Vt. Code R. §§ 200:1–13 (2012).
move to clarify or expand the scope of the 2014 Bankruptcy Court order and the Bankruptcy
Court issues its decision in response.
So ordered.
Electronically signed on November 13, 2015 at 08:50 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division