                                    STATE OF VERMONT

                                 ENVIRONMENTAL COURT

               Secretary, Vermont Agency of
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               Natural Resources, Plaintiff,
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                                                 } Docket No 234-11-99 Vtec
               v
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                                                 }
               Diane Harakaly, Defendant.

                                      Decision and Order

On October 27, 1998, the Secretary of the Vermont Agency of Natural Resources (ANR) issued
an administrative order pursuant to 10 V.S.A. ' 8008 regarding Defendant Diane Harakaly,
which was served on her on October 28, 1998. The administrative order described as the
remaining violation that Defendant had failed to install an approved on-site water supply system
pursuant to Subdivision Permit No. EC-5-2363. The administrative order required Defendant to
pay a penalty of $1,000 and either to install a drilled well by November 30, 1998 or to submit an
amendment application requesting approval of an alternative water system prior to November 13,
1998, and provided for the extension of those deadlines.

Defendant did not request a hearing regarding the administrative order, which became final. On
November 29, 1999, the Secretary of the Vermont Agency of Natural Resources filed a
complaint for enforcement of the final administrative order, pursuant to 10 V.S.A. ' 8014(a).
The summons and complaint was served on Defendant on November 20, 1999. She did not file
an answer to the complaint. The Secretary moved for default, and a default judgment was entered
on January 21, 2000, ordering Defendant to pay the penalty and to install an approved water
supply system within 90 days. This order also gave Defendant the choice of installing a drilled
well according to the plan referred to in Subdivision Permit No. EC-5-2363, or applying for an
amendment of that permit for an alternative water system.

The Secretary had the default order personally served on Defendant on April 27, 2000.
Defendant did not move to vacate the default order or otherwise respond to the personal service
of the order. The Secretary petitioned for contempt. At the contempt hearing, Ms. Harakaly
represented herself; the Secretary of the Agency of Natural Resources is represented by
Catharine Gjessing, Esq. The parties were given the opportunity to submit written memoranda
after the hearing. Upon consideration of the evidence and the written memoranda, the Court finds
and concludes as follows.

Defendant owns property on Codding Hollow Road in Waterville, Vermont, known as Lot 5,
subject to Subdivision Permit No. EC-5-2363. She and her four children reside in the house on
that property.

Section 2.1 of Subdivision Permit No. EC-5-2363 provides that the lots in the subdivision A are
approved for an on-site water supply from individual drilled wells, provided that each well is
located as shown on the plans and meets or exceeds the isolation distances required by the
Environmental Protection Rules.@

Defendant has been > improvising= an unacceptable water source for many years. While she states
she > recognizes= the dangers of this improvisation, she has chosen instead to devote her limited
financial resources to the care and upbringing of her four children and herself. This is a laudable
goal and the Court recognizes her success in having a child graduating from college.
Nevertheless, over the history of this case, Defendant had ample opportunity to contest or
negotiate the requirements that have been imposed on her. She did not do so, and it is
unacceptable in our legal system for her to simply ignore administrative and Court orders. On the
other hand, real inability to comply is a defense to civil contempt.

We find that while Defendant may have a present financial inability to have a drilled well
installed, she did not come forward with the evidence of her financial situation sufficient for the
Court to make such a finding. Further, even if she cannot afford to have all the stages of work
done at once, we find that she is able to comply in part by submitting the amendment application
given as an alternative in the last order. In addition, she testified about her desire to sell the
property, and the installation of an approvable water source by the purchaser must be made a
condition of any such sale, if Defendant has not come into compliance in advance of that event.
Plaintiff may apply under V.R.C.P. 70 to place any such notice in the land records.

Accordingly, it is hereby ORDERED and ADJUDGED that Defendant is in Contempt of the
Court= s order, and shall come into compliance by taking one or more of the following alternative
actions within the following time frames:

Either A.

1) within 15 days from the date of this order, discuss with and obtain in writing from John
Klimenok, Jr., Assistant Regional Engineer, the requirements for approval of an request for
amnesty to install a dug well instead of a drilled well on the property; AND

2) within 30 days from the date of this order, hire a Vermont-registered Professional Engineer or
Site Technician to conduct a site inspection with Mr. Klimenok to determine the best location on
the property for a dug well; AND

3) within 60 days from the date of this order install the dug well and have it inspected as required
by Mr. Klimenok; AND

4) within 75 days from the date of this order, submit an administratively complete request for
amnesty to Mr. Klimenok for approval of the installation of the dug well in lieu of the drilled
well.


OR B.
Within 60 days from the date of this order, install a drilled well as required by Subdivision
Permit No. EC-5-2363, after first having obtained approval of the location of the drilled well
from Mr. Klimenok.

OR C.

Within 15 days from the date of this order, apply to the Court for a ruling that Defendant lacks
the present ability to comply with any of the requested actions. This application will have to be
supported by a full disclosure of Defendant= s financial resources and situation from which the
Court may make a determination of ability or inability to comply, with copies supplied to
Attorney Gjessing. If such an application is made, the Court will promptly schedule a hearing on
the request, after time for Attorney Gjessing to respond and prepare for the hearing.

With regard to any of these alternatives, Defendant shall respond promptly to any review
comments, requests for information or directives from any Agency personnel, or shall promptly
submit a request in writing to this Court, with a copy to the Attorney Gjessing, for relief from
having to perform the requested action. The Court will not accept any future unilateral decisions
by Defendant simply to disregard such requests, directives or orders.

As Defendant mentions in her filing with the Court, Mr. Klimenok from the Agency discussed
with her after the hearing some alternative options, which may differ from the above order. The
parties are free to pursue any other alternatives and to submit them for approval as an
amendment of this order, if they wish to do so.



Done at Barre, Vermont, this 15th day of June, 2001.




___________________
Merideth Wright
Environmental Judge
