STATE OF VERMONT
SUPERIOR COURT - ENVIRONMENTAL DIVISION

Leo Henry, Respondent.

}
Secretary, Vermont Agency of }
Natural Resources, }
Plaintiff, } Docket No. 215-12-10 Vtec
} (Administrative Order
v. } enforcement proceeding)

}
}
}

Decision on the Merits

 

This matter became the subject of a merits hearing after Leo Henry
(“Respondent”) filed a timely request for a hearing and gave notice that he wished to
contest the December 14, 2010 Administrative Order issued against him by the
Secretary of the Vermont Agency of Natural Resources. The Order alleged that
Respondent (l) used a failed wastewater treatment system; (2) constructed a new
wastewater treatment system without a proper permit; and (3) discharged Waste into
state waters without a permit, all in violation of applicable statutes and wastewater
system rules. When the parties were unable to resolve their disputes voluntarily, the
Court set the matter for a site visit and merits hearing.

Respondent was present at the site visit and hearing, joined by his attorney,
Ross A. Feldman, Esq.1 The Vermont Agency of Natural Resources (“ANR”) was
represented at the site visit and merits hearing by John Zaikowski, Esq., who was
joined by_ ANR staff. Based upon the evidence admitted at the merits hearing,
including that which was put into context by a site visit conducted with the parties,
the Court renders the following factual and legal determinations, including

determinations on ANR’s request for imposition of penalties and other relief.

Factual Findings

1. At all times relevant to the Administrative Order that is at issue in these
proceedings, Respondent was the owner of land and improvements located at 2A

Gree'nwoods Road in Alburg, Vermont.

 

1 Due to Mr. Feldman’s relocation out of state after the merits hearing, Robert F. O’Neill, Esq. entered his

appearance as Respondent’s substitute counsel

2. Respondent’s Greenwoods Road property (“Property”) contains certain
improvements, including an on-site wastewater treatment system with a septic tank
and a gravity-fed, soil-based leach field.

3. Nelson and Joan LaChappelle, who are not named as parties in these
proceedings,2 own a mobile horne that is located on Respondent’s Property. The
LaChappelles and their children use and occupy this mobile home as their primary
residence

4. Respondent and the LaChappelles entered into an agreement whereby
Respondent, as landlord, was to receive rent from the LaChappelles, as land tenants,
in return for the LaChappelles being allowed to site their mobile home on
Respondent’s Property and to connect their home to Respondent’s on-site wastewater
treatment system.

5. Respondent did not regularly visit his Property while the LaChappelle family
occupied it.

6. At some point in early 2010 the wastewater treatment system on Respondent’s
Property stopped serving the LaChappelleS’ wastewater treatment needs. Mr.
LaChappelle thereafter disconnected the drain pipe from the on-site wastewater
treatment system that collected waste water from the LaChappelle’s bathtub and
washing machine This waste water did not contain waste solids, and we hereafter
refer to it as “grey water.”

7 . Once this grey water drain pipe was disconnected, untreated waste water
travelled over the top soil on Respondent’s Property and into a nearby unnamed
stream. Any storm water or waste water that enters this unnamed stream ultimately
flows, untreated, into Lake Champlain. Both the unnamed stream and the Lake are
state waters.

8. In response to concerns expressed to ANR staff about a failed wastewater
treatment system, ANR Environmental Enforcement Officer (“EEO”) Theodore Cantwell
visited Respondent’s Property on February 9, 2010. EEO Cantwell testified credibly
that on this first visit to Respondent’S Property, he observed the following:

a. untreated waste water, including grey water and soap suds, flowing over
the top soil and into the unnamed stream;

 

2 ANR served Mr. & Mrs. LaChappelle with a separate administrative order, Which Was the Subject of a separate
enforcement proceeding See 1[1] 29-32, below.

b. a grey water drain pipe from the LaChappelles’ home that was
disconnected from the on-site wastewater treatment system;

c. waste water that had “popped the top” of the septic tank and was flowing
onto the surrounding ground; and

d. moist, spongy soils in the vicinity of what was thought to be the location
of Respondent’s leach field.

9. EEO Cantwell took photos of the site and of the exposed waste water during his
February 9} 2010 site Visit. Four of those photos were admitted at trial. See Exhibits
3 through 6, inclusive

10. EEO Cantwell thereafter contacted Respondent, as owner of the Property, and
spoke with Respondent about what he had observed and what Respondent would need
to do bring his on-site wastewater treatment system into compliance with the
applicable rules.

11. As a follow-up and in response to what EEO Cantwell observed on February 9,
2010, EEO Cantwell issued a Notice of Alleged Violation (“NOAV”) on February 16,
2010 to Respondent, a copy of which was admitted at trial as Exhibit 8. This NOAV
describes the alleged violations of the Vermont Wastewater System and Potable Water
Supply Rules (effective Sept. 29, 2007) (“the Wastewater Rules”) that were occurring
on Respondent’s property and what Respondent, as owner of the Property, needed to
do to bring the Property into compliance with the Wastewater Rules. The NOAV also
advised Respondent that “the Agency may issue an Administrative Enf`orcement Order”
against Respondent. See Exhibit 8.

12. EEO Cantwell next visited Respondent?s Property on March 18, 2010. I-Ie was
accompanied on this second site visit by Assistant Regional Engineer Jessanne
Wyman, from the Department of Environmental Conservation (“DEC”), Wastewater
Management Division. DEC and its subdivisions are departments of ANR.

13. During this second site visit, EEO Cantwell and DEC Engineer Wyman observed
that the grey water drain pipe from the LaChappelle mobile home remained
disconnected and that waste water and soap suds continued to flow across the top soil
and into the adjacent unnamed stream. T hey also observed.that the lid on top of the
septic tank remained “popped” off as a result of waste water overfilling the tank, and
that the waste water from the septic tank was flowing in a separate path that joined
other waste water flows “in a confluence of waste run-off.” Testimony of DEC Engineer

Wyman. The photos admitted at trial as Exhibits 10, 11 and 12 show the “grainy,

mucus sludge” that was flowing over Respondent’s Property during their second site
visit. E.

14. As 'a follow up to this second site visit, DEC Engineer Wyman wrote to
Respondent by letter dated March 23, 2010 (Exhibit 22) in which she described the
surfacing of waste water and flow into the unnamed stream as “both a health hazard
and an illegal discharge of wastewater, [that] must be addressed immediately.”

15. During both of the site visits and in follow-up letters, EEO Cantwell and DEC
Engineer Wyman directed Respondent to take certain remedial measures to limit the
health hazard and begin the process of bringing Respondent’s Property into
compliance with the applicable Wastewater Rules.

16, Neither Respondent nor his tenants complied with the DEC directives Instead,
they allowed waste water to continue to flow, untreated, from the Property into waters
of the state.

17. During conversations with DEC Engineer Wyman, Respondent inquired about
receiving a permit or other authority to install a second septic tank on the Property,
either permanently or as a temporary measure that would allow his tenants to
continue to live on the Property while they searched for alternate living arrangements
18. By letter dated April 22, 2010, DEC Engineer Wyman advised Respondent that
she had reviewed Respondent’s suggestion of installing a second tank with her
Engineering Manager, and that DEC would “n_ot approve the addition of another tank
even on a temporary basis.” Exhibit 23 at l. By this letter, DEC Engineer Wyman
also advised Respondent that he must reconnect the grey water drain pipe and have
the existing septic tank pumped on a daily basis for as long as the home remained
occupied. DEC Engineer Wyman further advised Respondent that “[w]ithin 10 days of
receipt of this letter, [he] must hire a licensed designer to assist [him] in obtaining the
Water Supply and Wastewater Disposal System Permit.” E.

19. At some point, Respondent or Mr. LaChappelle reconnected the grey water
drain pipe to the on-site wastewater treatment system and had the existing septic tank
pumped on one or more occasions. Respondent provided no evidence of his efforts
during this period to have a compliant replacement wastewater treatment system
designed, permitted, or installed on his Property.

20. EEO Cantwell next visited Respondent’s Property on July 23, 2010. During this
third site visit, EEO Cantwell took photos of Respondent’s Property, concentrating on

areas that appeared to have recently been excavated, likely with the use of excavation
equipment. Five of those photos were admitted as Exhibits 17 through 21, inclusive.
In particular, these photos evidence that earthen fill was installed along the area
where the waste water once flowed and that a cylindrical area of earth, 12 feet in
diameter, appeared to have been recently disturbed and replaced.

21. Mr. LaChappelle advised that he and Respondent had installed a “dry well” and
connected it to the existing septic tank to replace the failed leach field. A dry well is a
tank similar to a septic tank, often of a cylindrical shape, that has holes in its sides to
allow waste water to leach out.

22. Mr. LaChappelle also advised EEO Cantwell that he and Respondent had also
installed an earthen berm so as to limit the flow of waste water into the nearby
stream.

23. Neither Respondent nor Mr. LaChappelle applied for nor obtained a permit to
authorize the work they completed on the Property.

24. Respondent failed to seek direction from a licensed designer for the replacement
system and failed to disclose any replacement wastewater treatment system design to
ANR officials prior to actually installing the System.

25. Respondent denies Mr. LaChappelle’s admissions to EEO Cantwell that he
installed a dry well on the Property. Respondent asserts that he merely reconnected
the grey water drain pipe and fixed a pipe that had broken that transmitted waste
water from the existing septic tank to the existing leach field. Respondent further
asserts that the excavation work he performed “only took twenty minutes” and that
the existing leach field worked perfectly after his brief repairs Respondent’s
assertions are not credible, given the credible contradictory testimony of EEO Cantwell
and Mr. LaChappelle, and the evidence of excavation work depicted in Exhibits 17
through 2l.

26. On December 14, 2010, ANR Secretary David Mears issued an Administrative
Order (“AO”) against Respondent, as the current owner of the Property, directing that
Respondent take certain actions to immediately stop the flow of untreated waste water
from the Property, to employ a septage hauler to regularly pump the existing septic
tank, to employ a licensed designer or engineer to design a proper on-site replacement
wastewater treatment system, and to secure a permit for, and then install, the on-site

system. A copy of this AO was admitted at trial as Defendant’s Exhibit B.

27. Respondent was duly served with the December 14, 2011 AO and thereafter
filed a timely request for a hearing with this Court, thereby giving notice that
Respondent intended to contest the AO.

28. While this enforcement action was pending, Respondent transferred his
Property to Mr. and Mrs. LaChappelle by Quitclaim Deed dated Februa_ry 25, 2011,
which was delivered to the Alburg Town Clerk for recording in the Town of Alburg
Land Records on March 4, 2011. See Exhibit 1.

29. On June 17, 2011, Secretary Mears issued an AO against Mr. and Mrs.
LaChappelle, as then current owners and occupants of the Property, directing that the
LaChappelles take certain actions to immediately stop the flow of untreated waste
water from the Property, to employ a septage hauler to regularly pump the existing
Septic tank, to employ a licensed designer or engineer to design a proper on-site
replacement wastewater treatment system, and to secure a permit for, and then
install, the on-site system.3

30. Mr. and Mrs. LaChappelle were duly served with the June 17 , 2011 AO but
chose not to file a response with the Court or with ANR.

31. On July 25, 2011, this Court issued an Order enforcing the June 17, 2011 AO
against Mr. and Mrs. LaChappelle See ANR v. LaChappelle, No. 88-6-11 Vtec (Vt.
Super. Ct. Envtl. Div. July 25, 2011) (Durkin, J.). No appeal was taken from the July
25, 201 1 Order, which has now become final.

32. As of the date of trial on October 23, 2011, neither Respondent nor Mr. and
Mrs. LaChappelle had performed the remedial measures required in either AO, other
than the reconnection of the grey water drain pipe and an occasional pumping of the
existing septic tank.

33. ln direct response to the failed system and waste water flows from Respondent’s
property into waters of` the state, EEO Cantwell expended in excess of 60 hours in
investigation and response. His salary and benefits cost ANR an average of $29.52 per
hour. DEC Engineer Wyman expended in excess of 15 hours in her investigation and
response. Her salary and benefits cost ANR an average of $32.00 per hour. EEO
Cantwell’s and DEC Engineer Wyman’s estimates of time expended do not include

their time spent preparing for, attending, and testifying at trial.

 

3` This AO and the Court’s subsequent Order enforcing it against Mr. and Mrs. LaChappelle were not offered into
evidence during the merits hearing, but the Court has taken judicial notice of the public records in this separate
docket.

34. No estimate was provided to the Court of the exact time expended by Attorney
Zaikowski and his support staff in preparing, filing, and prosecuting the AO against
Respondent, although it was evident at trial that ANR expended considerable legal
resources in responding to the discharge of waste water from Respondent’s Property

into state waters

Discussion

Respondent does not appear to dispute many of the substantive factual
allegations ANR presented to the Court in this enforcement proceeding, namely,' that
there was some failure of the on-site wastewater treatment system on his Property in
early 2010 and that his tenants disconnected the grey water drain pipe from the on-
site wastewater treatment system, thereby allowing waste water to flow across the
Property, untreated, into a nearby stream. There also appears to be no dispute that,
for whatever reason, the existing septic tank was filled with raw waste beyond its
capacity, so that pressure from the waste popped the exposed lid on the top of` the
septic tank, thereby allowing waste water to flow from the top of the septic tank,
untreated, over the Property and into the nearby stream. Lastly, Respondent did not
dispute that he failed to retain a certified designer or engineer to design a replacement
wastewater treatment system, to apply for any needed permits, or to install an
approved replacement system on the Property he owned at the time of` ANR’s
investigation

Respondent disputes certain other material facts, all of which we resolve in
ANR’s favor: that Respondent, sometimes with Mr. LaChappelle’s help, excavated
portions of the existing on-site septic system, installed a new but unpermitted dry
well, and connected that dry well to serve waste stored and flowing from the existing
septic tank.

Respondent also raises two legal issues for our review: whether he violated 10
V.S.A. §1259(a) for the discharges of waste water that were caused by his tenants’ use
of the on-site system on his Property and, if so, whether he may be required under the
applicable Wastewater Rules to now take the remedial measures ANR requests We
now address those legal issues

The applicable statutory prohibition directs that:

No person shall discharge any waste, substance or material into
waters of the state, nor shall any person discharge any waste, substance
or material into an injection well or discharge into a publicly owned

treatment works any waste which interferes with, passes through
without treatment, or is otherwise incompatible with those works or
would have a substantial adverse effect on those works or on water
quality, without first obtaining a permit for that discharge from the
secretary.

10 V.S.A. § 1259(a). This section continues with exceptions that are not relevant to
our proceedings here

Respondent’s argument relies upon a narrow reading of § 1259(a). Respondent
argues that his tenants, not Respondent, “discharge[d]” the waste water on
Respondent’s Property. Respondent’s argument employs an interpretation of the
terms “discharge” and “person” that is based upon both the accepted dictionary
definitions of the terms as well as the definitions for those terms included in the
Vermont Water Pollution Control statutes See 10 V.S.A. § 1251(3), (8). But the
material facts, the language in § 1259(a), and persuasive analogies from state and
federal case law dictate an alternative interpretation from that which Respondent
wishes us to adopt. _

Respondent’s Property included an on-site wastewater treatment system which
he allowed his tenants to use when he entered into a land lease agreement The
undisputed facts show that Respondent, as the landowner, provided the on-site
wastewater treatment system. When asked at trial whether his tenants had agreed to
assume responsibility or liability for the on-site system, Respondent replied that he
“had nothing in writing.” Respondent provided the on-site system for his tenants’ use
and did not restrict the use during the tenants’ occupancy. This arrangement between
Respondent and his tenants conformed to a landlord’s responsibilities to a residential
mobile home tenant under the Vermont Health Regulations, which have been
administered and enforced by the Vermont Agency of Human Services, Department of
Health. See Vermont Department of Health Rental l-lousing I-lealth Code § III(D)(S)
(“Owners of rented mobile horne lots shall provide hook-up to . . . a properly operating
subsurface wastewater disposal system. Each wastewater disposal system shall be
operated so that sewage does not back-up into the dwelling, flow to the ground surface
or directly into a surface water.”).

Respondent’s argument focuses on the narrow issue of who was the source of
the discharge There is no dispute that the waste water discharge came from the
LaChappelles’ use of the on-site system. But § 1259(a) does not narrowly focus on

when the waste water discharge first surfaced and who contributed to that discharge;

rather, the statute prohibits the discharge of “M waste . . . into waters of the state.”
Q. (emphasis added). Thus, the prohibited activity occurred not when the waste water
first surfaced on Respondent’s Property, but rather when that waste water reached
state waters

Respondent’s argument, if followed, would limit ANR’s enforcement capabilities
to an active discharger. Read as restrictively as Respondent suggests, the statutory
prohibition would only apply to one who is holding a drain pipe and is actively
directing its discharge We decline to adopt such a restrictive interpretation of this
statute

We conclude that when a property owner allows another to use his or her
property in such a manner that waste discharges into state waters, and then does not
timely comply with an ANR notification of the steps he or she must take to stop the
unlawful waste water discharge that property owner has engaged in an unlawful
discharge _

The issue of whether § 1259(a) may give rise to a property owner’s liability, even
when the owner was not on site during the discharge appears to be one of first
impression for this Court and the Vermont Supreme Court. However, our research
has revealed an analogous case: ANR v. lrish, 169 Vt. 407 (1999). In ANR v. Irish, a
farmer (l\/lr. lrish) was approached about the possible subdivision of a 26-acre portion
of his farm fields 169 Vt. at 409. The portion contained wetlands that flowed into a
nearby brook. E. Mr. lrish hired an excavator to remove some trees and brush near
or in these wetlands and to excavate a drainage ditch. E. at 410. ANR and municipal
officials thereafter complained about the work that Mr. lrish had completed in the
wetlands as well as a discharge of silt that was flowing into the nearby brook as a
result of the work. Q. ANR and the town ultimately brought enforcement actions
against Mr. lrish based, in part, upon a violation of 10 V.S.A. § l259(a). ld.

Mr. lrish based his denial of liability on several legal arguments, including that
he was not aware of the significance of the wetlands on his property and did not
intend to discharge waste into state waters E. at 411, 416. The Vermont Supreme
Court rejected these two arguments and, in doing so, clarified that although one who
intends to discharge into state waters must first obtain a permit to do so, the state
need not prove “intent” to assert that a property owner violated 10 V.S.A. § 1259(a).
M. at 416; see also 10 V.S.A. § l263(a) (requiring “[a]ny person who intends to

discharge waste into the waters of the state” to obtain a discharge permit). The Court
concluded that l\/lr. lrish could be held liable for discharges from his property under 10
V.S.A. § l259(a) even when he did not intend the discharges See ANR v. lrish, 169 Vt.
at 416. Although the Court did not comment on this element of the charge the Court
also effectively concluded that Mr. lrish, as the property owner, could be held liable for
discharges caused by the actions of another, the excavator he hired. See i_d. at 140,
416.

Federal laws also seek to protect designated waters from waste discharge under
what is commonly known as the Clean Water Act, 33 U.S.C., Chapter 26. The federal
Clean Water Act contains a discharge prohibition that is very similar to 10 V.S.A.
§ 1259(a); the federal law directs that “the discharge of any pollutant by any person
shall be unlawful” unless it is authorized by a National Pollutant Discharge
Elimination System, or NPDES, permit. 33 U.S.C. §§ 1311(a), 1342. The Clean Water
Act defines the “discharge” of a pollutant or pollutants as the “addition of any
pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12).

The 10th Circuit has rejected an argument similar to Respondent’s here but
based on the federal Clean Water Act. See Sierra Club v. El Paso Gold Mines, lnc.,
421 F.3d 1133 (10th Cir. 2005). ln El Paso Gold Mines, defendant El Paso Gold

 

Mines, an entity owning property on which there was an inactive gold mine argued
that the Clean Water Act, particularly in its use of the term “addition” in defining
discharge “requires affirmative conduct by some actor before liability attaches.” 421
F.3d at 1136, 1 143. The 10th Circuit rejected El Paso’s argument and concluded that
a successor property owner can be liable under the Clean Water Act for a discharge
that occurs from his or her lands because when “viewed as a whole . . . the liability
and permitting sections of the [Clean Water] Act focus on the point of discharge not
the underlying conduct that led to the discharge.” E. at 1141-43. Thus, the 10th
Circuit concluded that El Paso could be held liable under the federal Clean Water Act
for ongoing discharges from its dormant mine property even though El Paso had never
operated the mine or actively contributed to the discharges from its property."' E. at
1136, 1141, 1146; see also West Virginia l-Iighlands Conservation, Inc. v. Huffman,
625 F.3d 159, 161, 164, 167-68 (4th Cir. 2010) (concluding that a state agency

 

4 Whjle the 10th Circuit established this legal standard, it reversed the district court’s entry of summary judgment
against El Paso after concluding that some material facts remained in dispute El Paso Gold Mines, 421 F.3d at
l 149.

10

conducting reclamation at reclaimed mine sites that had been forfeited to the state
needed a NPDES permit despite the fact that the agency was not the root cause for the
pollution that was discharging from the sites). l

Just as with federal law, Vermont law directs that “[n]o person shall discharge
any waste . . . into waters of the state . . . .” 10 V.S.A. § 1259(a). Discharge is defined
in 10 V.S.A § 1251(3) as “the placing, depositing or emission of any wastes, directly or
indirectly, . . . into the waters of the state.” We do not agree with Respondents that
this language is distinguishable from that of the federal Clean Water Act. Here waste
water is being “emitted” from respondent’s Property into waters of the state similar to
the manner in which pollutants were being “added” to navigable waters from El Paso’s
property in El Paso Gold Mines, See 421 F.3d at 1143.

Our conclusion that Respondent must be held liable for violations of § 1259(a)
has further foundation in additional facts, disputed by Respondent, which evidence
provided at trial supports

First, the discharge at issue did not occur solely as a result of Mr. LaChappelle
disconnecting the grey water drain pipe from the on-site septic system. Waste was
also discharged as a consequence of the on-site septic tank being filled beyond
capacity, ln failing to regularly pump the on-site septic tank, particularly after ANR
gave Respondent specific notice to do so, Respondent allowed waste to overflow from
his on-site tank, surface onto his Property, and discharge into state waters

Second, the evidence shows that Respondent brought excavation equipment
onto the Property and conducted work on the wastewater disposal system.
Respondent insisted that he did no more than twenty minutes of excavation work
limited to the reconnection of a pipe to the leach field, However, Mr. LaChappelle’s
admission that he assisted Respondent with installing a dry well, and the photos
showing disturbed earth on Respondent’s Property, bely Respondent’s explanation
T he most credible evidence leads us to conclude that Respondent replaced the on-site
leach field, which had failed and caused a backup of waste water into the septic tank,
with an unpermitted dry well, Contributing to our conclusion is Respondent’s
admission that he requested permission to install a second septic tank, but that ANR
declined his request. Respondent’s excavation activities followed ANR’s rejection of his
proposed second septic tank, Respondent took no further efforts to bring his property

into compliance with 10 V.S.A. § 1259(a). ln fact, his next substantive action

ll

concerning the Property was to quitclaim it to his tenants in an apparent effort to
absolve himself of his responsibilities to address the failed septic system.

Vermont property owners who wish to discharge waste on their property may do
so only after receiving a permit that authorizes them to transmit the waste to an
approved on-site wastewater treatment system or to an approved publicly owned
wastewater treatment system. 10 V.S.A. § 1259(a). For the reasons stated above_we
conclude that Respondent has violated 10 V.S.A. § 1259(a) by discharging waste into
state waters without such a permit.

ANR is tasked with administering the waste discharge permit approval process

7 and establishing the rules for such permit applications 10 V.S.A. § 1259(h). ANR
maintains and administers the Wastewater Rules to fulfill this statutory responsibility
ANR has charged Respondent with violations of two material provisions of the
Wastewater Rules: first, the use of a failed on-site wastewater disposal system and
second, the installation of a replacement system without first obtaining permit
approval Wastewater Rules § 1~303(a)(2), (10). For the reasons stated below, we
conclude that Respondent has violated both of these rule provisions

As defined in the Wastewater Rules, a “failed system” is “a wastewater system
that . . . allows wastewater to be exposed to the open air, to pool on the surface of the
ground, to discharge directly to surface water . . .” Wastewater Rules § 1-
201(a)(25)(A)(i). The existing on-site wastewater treatment system on Respondent’s
Property fulfilled the definition of a failed system from some time in early 2010 until
just prior to EEO Cantwell’s third site visit on July 23, 2010. Furthermore, the
surfacing of waste only ceased after Respondent installed the unpermitted dry well on
his property and hooked it to the overflowing septic tank. Thus, Respondent allowed
his tenants to use a failed septic system, refused to follow the multiple directives of
ANR officials to cease the use of the failed system, failed and refused to have designed,
seek approval for, and install a permitted system, and instead installed an
unpermitted dry well as a secondary septic tank,

Since Respondent chose not to offer any evidence to the contrary, we are left to
conclude that his violations of the Wastewater Rules continued until he transferred his
Property to Mr. and Mrs. LaChappelle in February 2011 by Quitclaim Deed. The
unspoken explanation for this transfer was Respondent’s effort to avoid liability for the

failed system and his self-help measures employed to fix that system. But while

12

Respondent may no longer have legal title and control over his former Property, we
know of no legal authority which absolves him of liability for his unlawful discharge of
waste use of the failed on-site wastewater treatment system, and installation and use
of an unpermitted replacement wastewater treatment system.5

When a respondent seeks a hearing on an ANR administrative order, this Court
is charged with (1) determining whether a violation has occurred; (2) affirming,
modifying, or reversing any provision of the administrative order; and (3) reviewing
and determining anew the amount of any penalty to be assessed against the
respondent See 10 V.S.A. § 802(b). As stated above we conclude that Respondent
has violated 10 V.S.A. § 1259(a) by discharging waste into waters of the state and has
also violated the applicable provisions of the Wastewater Rules by using a failed on-
site system and using an unpermitted on-site system in connection with his leasing of
the Property to Mr. and Mrs. LaChappelle Respondent authorized his tenants to use
the on-site wastewater treatment system, was put on notice shortly after the system
on his Property failed, and refused to comply with ANR’s repeated directives to cease
the unlawful discharge of waste and use of unpermitted systems on his Property.
Respondent chose to avoid the cost of remedying the failed system and instead
transferred the Property to the LaChappelles, presumably under the mistaken
impression that his transfer would absolve him of liability.

Having concluded that Respondent committed the violations at issue we turn
next to determining what penalty, if any, should be assessed against him. We are
guided in fulfilling this responsibility by the provisions of 10 V.S.A. § 8010(b), which
provides that

ln determining the amount of the penalty, the secretary [of ANR in the
first instance and this Court when a hearing is requested§] shall consider
the following:

(1) the degree of actual or potential impact on public health, safety,
welfare and the environment resulting from the violation;

(2) the presence of mitigating circumstances including unreasonable
delay by the secretary in seeking enforcement;

 

5 We note that by virtue of the June 8, 2011 AO and this Court’s Order of July 25, 2011, Mr. and Mrs. LaChappelle
have been directed to cease any waste discharges on the Property, to cease the use of the unpermitted on-site system,
to have a proper replacement system designed, to obtain a permit for and install that replacement system, or to
vacate the property. See June 8, 2011 AO at 3-5, 1111 A_K.

6 see 10 v.s.A § 8012@)(4).

(3) whether the respondent knew or had reason to know the violation
existed;

(4) the respondent's record of compliance;

(6) the deterrent effect of the penalty;

(7) the state's actual costs of enforcement; and

(8) the length of time the violation has existed.7

In applying these standards, we note that (a) the raw waste discharge from
Respondent’s Property caused significant potential harm to public safety; (b)
Respondent had actual knowledge of the existing violations and contributed to
additional violations after receiving ANR’s timely and multiple notifications; (c)
Respondent chose not to comply with ANR directives, but rather to quitclaim the
Property without first rectifying the violations; (d) the violations existed from early
2010, had not been resolved by the time of trial, and may continue to this day; and (e)
ANR incurred significant expenses in its efforts first to convince Respondent to rectify
the discharge violations on his Property and then to prosecute Respondent once it
became clear that Respondent had refused to abide by ANR’s directives For these
reasons, we conclude that a significant penalty, totaling $18,000.00, is warranted.
Such a penalty is necessary because of the seriousness of Respondent’s violations and
the need to create a significant deterrent to Respondent’s disregard of the applicable

wastewater discharge statutes and the Wastewater Rules.

Conclusion

For the reasons stated above we conclude that Respondent Leo Henry violated
the Vermont Water Pollution Control provisions in 10 V.S.A. § 1259(a) and the
provisions of the Vermont Wastewater System and Potable Water Supply Rules
(effective Sept. 29, 2007) that prohibit the use of a failed wastewater disposal system
and the use of an unpermitted disposal system, Wastewater Rules §1-303(a)(2) and §1-
303(a)(10). As a consequence of these violations, and pursuant to the authority of 10
V.S.A. §8012(b)(5), we hereby modify the Administrative Order ANR Secretary David
Mears issued against Respondent Leo Henry, dated December 14, 2010, as follows:

1. The Court’s independent determination is that Respondent shall pay a
penalty of $18,000.00 to ANR no later than thirty (30) days following the

 

7 We note that, given the level of the penalty we assess, the penalty limitations of 10 V,S.A. § 8010(0) do not apply
here.

14

date on which this Decision and the accompanying Judgment Order become
final (finality being defined as either 10 (ten) days after this Decision and
Judgment Order are received, or once any appeal is dismissed or resolved);

2. The injunctive relief and specific performance directed by paragraphs (B)
through (L), inclusive in the ANR Secretary’s December 14, 2010
Administrative Order are hereby VACATED, given that Respondent Leo
Henry quitclaimed his entire interest in the subject Property; and

3. Nothing contained in this Decision or the accompanying Judgment Order
shall be regarded as a waiver or bar of any responsibility or liability that
Respondent may have to his former tenants, Nelson and Joanne
LaChappelle in connection with the discharge of waste, failed on-site system
or installation of the unpermitted dry well,

Kights of Appeal (10 V.S.A. §§ 8012(¢)(4) and (5))

WARNING: This Merits Decision and the accompanying Judgment Order will
become final if no appeal is requested within 10 days of the date this Merits Decision
and Judgment Order are received. All parties to this proceeding have a right to
appeal. The procedures for requesting an appeal are found in the Vermont Rules of
Appellate Procedure (V.R.A.P.) subject to superseding provisions in the Vermont Rules
for Environmental Court Proceedings (V.R.E.C.P.). 4(d)(6). Within 10 days of the
receipt of this Merits Decision and Judgment Order, any party seeking to file an
appeal must file the notice of appeal with the Clerk of the Environmental Division of
the Vermont Superior 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 Vermont Supreme Court operates
as a stay of payment of a penalty, but does not stay any other aspect of an order
issued by this Court. 10 V.S.A. § 8013(d). A party may petition the Vermont Supreme
Court for a stay under the provisions of the Vermont Rules of Civil Procedure

(v.R.c.P.) 62 and v.R.A.P. s

A Judgment Order accompanies this Decision. This concludes the current

proceedings before this Court in this enforcement action.

Done at Newfane, Vermont this 13th day of March, 2012.

mamie

Thomas S. Eurkin, Environmental Judge

 

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