                                    STATE OF VERMONT
                                  ENVIRONMENTAL COURT

                                                  }
SECRETARY, VERMONT AGENCY                         }
OF NATURAL RESOURCES,                             }
     Plaintiff,                                   }
                                                  }
        v.                                        }           Docket No. 141-10-12 Vtec
                                                  }             (Berlin site)
FRED BUDZYN, d/b/a BUDZYN                         }
REMOVAL & RECYCLING,                              }
     Respondents.                                 }
                                                  }

                                      JUDGMENT ORDER

        This matter came on for a hearing on the merits on September 10, 2013, before the
undersigned judge. The Secretary of the Vermont Agency of Natural Resources (“ANR”) was
represented by her attorneys, Kathryn E. Taylor, Esq. and John Zaikowski, Esq. Respondents
Fred Budzyn, d/b/a Budzyn Removal & Recycling, (“Respondents”), joined by Mrs. Budzyn,
appeared at trial and were assisted by their attorney, Gregory W. McNaughton, Esq.
        The Court afforded the parties a full opportunity to present all relevant evidence, including
witness testimony, as well as an opportunity to fully cross-examine the other witnesses. Once all
parties completed their presentations, the Court took a brief recess to complete its deliberations and
legal research.
        Once the Court completed its deliberations, the undersigned returned to the bench,
reopened the hearing, and announced that he had concluded that Findings of Fact and
Conclusions of Law could be announced on the record of the reconvened hearing. The Court
then announced its Findings of Fact and Conclusions of Law on the record of the hearing. Any
individual wishing to review the Court’s Findings and Conclusions in detail is referred to the
merits hearing record.
        The Court specifically concluded that the tires stored on Respondents’ Berlin property
constituted “solid waste,” as that term is defined in 10 V.S.A. § 6602(2) and the Vermont Solid
Waste Management Rules.         The Court reached this conclusion based upon several factual
findings, including that the original owners of the tires “discarded” the tires and Respondents
received a fee from the business entities for taking the discarded tires in order that the tires may


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be recycled, reused, or otherwise safely and legally disposed. Respondents grouped and stored
the discarded tires with some tires that Respondents may have purchased, since the tires
Respondents actually purchased (sometimes for as little as one to five dollars per tire) may have
had some useable tread remaining. Nonetheless, substantially all tires received by Respondents
and stored on the Berlin property, unprotected from the elements and left in large piles, had been
discarded by their prior owners and should therefore be regarded as solid waste. The fact that
Respondents were able to subsequently sell some of the discarded tires (some of which had been
stored on the Berlin property for three years or more) does not negate our conclusion that a
substantial majority of the tires Respondents received and stored on the Berlin property
constitute solid waste.
        The Court then reviewed all criteria listed in 10 V.S.A. §§ 8010(b)(1) through (b)(8) and
(c)(2) that must be considered by ANR in the first instance, and this Court in the second instance
(when a hearing is requested), for the purposes of establishing whether an administrative penalty
should be imposed. Specifically, the Court considered the mitigating factor of ANR’s delay in
seeking enforcement under subsection (b)(2) and whether                  a deterrence penalty should be
imposed under subsection (b)(6).          The Court concluded that a penalty should be imposed,
including a deterrence penalty of $10,000.00. It imposed a total penalty in favor of ANR and
against Respondent, both individually and in his business name, in the amount of $17,301.00.1
        Pursuant to the authority vested in this Court by 10 V.S.A. § 8012(b), we hereby modify
paragraph A of ANR’s August 21, 2012 Administrative Order issued against Respondent in both
his individual and business name and impose a revised total penalty of $17,301.00, which
penalty must be paid no later than thirty (30) consecutive calendar days following the date of this
Judgment Order. Payment shall be to the State of Vermont, to be deposited in the general fund
pursuant to 10 V.S.A. § 8010(e), and shall be forwarded to the address specified in paragraph A
of the Administrative Order.
        Pursuant to the authority vested in this Court by 10 V.S.A. § 8012(b), we hereby
AFFIRM the Secretary’s August 21, 2012 Administrative Order against Respondents in all other
respects.



1
  As noted on the record, the Court imposed a portion of the penalty totaling $3,301.00 as reimbursement of the
expenses that ANR incurred in its enforcement against Respondents. See 10 V.S.A. § 8010(b)(7).


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Rights of Appeal (10 V.S.A. §§ 8012(c)(4) and (5)):

       WARNING: This Decision will become final if no appeal is filed within ten (10) days
of the date this Decision is received. All parties to this proceeding have a right to appeal this
Decision. The procedures for filing an appeal are found in the Vermont Rules of Appellate
Procedure (V.R.A.P.), subject to superseding provisions in Vermont Rules for Environmental
Court Proceedings (V.R.E.C.P.) 4(d)(6). Within ten (10) days of receipt of this Order, any party
seeking to file an appeal must file the notice of appeal with the Clerk of the Environmental
Court, together with the applicable filing fee. Questions may be addressed to the Clerk of the
Vermont Supreme Court, 111 State Street, Montpelier, VT 05609-0801, (802) 828-3276. An
appeal to the Supreme Court operates as a stay of payment of a penalty, but it does not stay any
other aspect of this Judgment Order or the Administrative Order affirmed and revised by this
Court. 10 V.S.A. § 8013(d). A party may petition the Supreme Court for any additional stay
under the provisions of V.R.C.P. 62 and V.R.A.P. 8.


       Done at Newfane, Vermont this 12th day of September, 2013.




                                            __________________________________________
                                                  Thomas S. Durkin, Environmental Judge




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