                               STATE OF VERMONT
                    SUPERIOR COURT - ENVIRONMENTAL DIVISION

                                                  }
     Secretary, Vermont Agency of                 }
       Natural Resources,                         }
                Plaintiff,                        }         Docket No. 64-5-13 Vtec
                                                  }         (Administrative Order
                       v.                         }         enforcement proceeding)
                                                  }
     Robert and Andrea Sanford,                   }
              Respondents                         }
                                                  }

                                     Decision on the Merits

       This matter came before the Court for a merits hearing after Respondents Robert and
Andrea Sanford (Respondents) filed a timely request for a hearing and gave notice contesting
the February 13, 2013 Administrative Order (AO) that the Secretary of the Vermont Agency of
Natural Resources (ANR) issued against Respondents. The AO was served upon Respondents
on April 30, 2013 and filed with the Court on May 16, 2013. ANR alleged in the AO that
Respondents altered a stream without a permit and caused material to discharge into waters of
the State without first receiving authority to do so. The AO includes an ANR directive that
Respondent pay certain penalties.
       When the parties were unable to resolve their legal disputes voluntarily, the Court set
this matter for trial. The Court conducted a site visit to 76 Andover Street, Ludlow, Vermont on
the morning of the June 13, 2013 merits hearing, which was held at the Windsor Superior Court
in Woodstock, Vermont.
       ANR was represented at the merits hearing by John Zaikowski, Esq. and Kathryn E.
Taylor, Esq., ANR staff attorneys. Respondent Robert Sanford appeared at the merits hearing
pro se, and Andrea Sanford did not appear.
       Based upon the evidence presented and admitted at the merits hearing, 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.     Respondents own a parcel of land located at 76 Andover Street in Ludlow, Vermont.
2.     Jewel Brook is located adjacent to the southern border of Respondents’ property.

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3.     As part of his property improvement efforts, in May 2011, Mr. Sanford directed his
agent, Jim Filipowicz, to remove knot weed and other debris from Respondents’ property along
Jewel Brook.
4.     Mr. Filipowicz used a Kubota excavator to remove the knot weed and debris, including
but not limited to salvage and scrap metal.
5.     Knot weed is a non-native invasive plant in Vermont. It is very difficult to eliminate
once it is growing in an area.
6.     The debris other than the organic material was disposed of off-site at a dump.
7.     Mr. Filipowicz also installed landscaping fabric, top soil, and seed on the top of the
stream bank to improve the property.
8.     During Mr. Filipowicz’s work, rock, stones, and soils were moved and relocated into
and around the stream bank of Jewel Brook. This activity took place within the cross section of
the Brook. As knot weed was removed and other debris taken out, voids and holes were
created. Rock and soil from other areas were used to fill the voids and holes.
9.     Mr. Filipowicz’s work took one and a half to two days to complete.
10.    Twenty five to thirty cubic yards of material, including but not limited to rocks, stones,
and soil, were dislodged, moved, relocated, and repositioned within the stream bank, or cross
section, of Jewel Brook.
11.    Respondents never removed the material from the stream bank; however, they did
mulch the disturbed area.
12.    In August 2011, Tropical Storm Irene washed away the materials on the stream bank at
issue in this matter, including rocks and soil.
13.    Altering a stream’s cross section presents potential for adverse risks or impacts to public
health and safety by decreasing the carrying capacity of the stream and thereby increasing the
chance of upstream flooding. Additionally, to the extent that shading vegetation is eliminated,
it can cause an increase in water temperature and alter the chemistry of the water.
14.    The following ANR officials devoted the following time, at their established hourly
rates, to respond to Respondents’ actions:
       a. Tim McNamara, Environmental Enforcement Officer, devoted 46.0 hours; his time is
          valued at $25.86 per hour.
       b. Todd Menees, Environmental Engineer, devoted 8.5 hours; his time is valued at
          $22.91 per hour.


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                                          Legal Conclusions

    I. Violations

        a. Stream Alteration Without a Permit
        ANR first alleges that Respondents violated 10 V.S.A. § 1021(a)1 by “adding and/or
moving more than 10 cubic yards of fill to the cross section of the watercourse [of Jewel Brook]
without a stream alteration permit.” (Administrative Order at 3, filed May 16, 2013.) At trial,
Mr. Sanford claimed that his activities on May 6, 2011 did not disturb anything within the cross-
section of Jewel Brook. Based on the credible testimony of ANR’s witnesses, however, and the
photographic exhibits provided by ANR, we find that Respondents’ activities on May, 2011
caused more than 10 cubic yards of loose materials, including stones, soil, and organic matter,
to be moved within the cross-section of Jewel Brook. This had the effect of altering the cross
section of the brook. Accordingly, we find Respondents in violation of 10 V.S.A. § 1021(a).

        b. Discharge Into Waters of the State Without A Permit
        ANR’s second allegation is that Respondents violated 10 V.S.A. § 1259(a) by discharging
rocks and fill into Jewel Brook.” (Administrative Order at 3, filed May 16, 2013.) In relevant
part, 10 V.S.A. § 1259(a) provides that “[n]o person shall discharge any waste, substance, or
material into waters of the state, . . . , without first obtaining a permit for that discharge from the
secretary.” The definition of “discharge” encompasses both direct and indirect discharge of
materials into state waters, which include all rivers, streams, creeks, and brooks in Vermont.
See 10 V.S.A. § 1251(3), (13). ANR’s witnesses credibly testified that the composition of the
materials on the banks of Jewel Brook after Respondents’ activities was not appropriate for
stream bank fill, and photographic exhibits show that much of the material was washed away
after Tropical Storm Irene. By altering the cross section of the brook through the movement of
materials on the banks of the brook, Respondents indirectly caused the discharge of those




1 10 V.S.A. § 1021(a) provides that “[a] person shall not change, alter, or modify the course, current, or
cross section of any watercourse or of designated outstanding resource waters, within or along the
boundaries of this state either by movement, fill, or by excavation of ten cubic yards or more in any year,
unless authorized by the secretary.”

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materials into the waters of Jewel Brook.2 Accordingly, we find Respondents in violation of 10
V.S.A. § 1259(a).

    II. Penalty Assessment
        When this Court determines that an environmental violation alleged by ANR in an
administrative order has occurred, we are required to “determine anew the amount of a
penalty” that should be assessed against the respondent who sought to challenge the ANR
order. 10 V.S.A. § 8012(b)(1), (4). We therefore review the credible facts presented here to
determine an appropriate penalty assessment, pursuant to 10 V.S.A. § 8010(b)(1)–(8).
        Subsection (1):      Respondents’ disregard for 10 V.S.A. §§ 1021(a) and 1259(a) had
potential adverse impacts on public health, safety, welfare, and the environment, given the
amount of material ultimately discharged downstream.                 To discourage Respondents from
undertaking future violations, we impose a penalty of $3,000. We conclude that such a penalty
is warranted given that Respondents’ failed to fully cooperate with ANR to understand and
carry out corrective measures to avoid the discharge. However, we decline to impose a more
significant penalty under this subsection, since actual impacts were not demonstrated by the
evidence presented at trial.
        Subsection (2):      There was no evidence presented of mitigating factors favoring
Respondent Sanford or disfavoring the timeliness of ANR’s action. We therefore assess no
penalty or credit in light of this factor.
        Subsection (3): The credible evidence shows that Respondents did not have knowledge
of 10 V.S.A. §§ 1021(a) and 1259(a). For this reason, we decline to assess any additional penalty.
        Subsection (4): The record presented does not show that Respondents had previously
violated ANR’s regulations. For this reason, we decline to assess any additional penalty.
        Subsection (5): This subsection has been repealed.
        Subsection (6): In reviewing the importance of establishing a penalty that will have a
deterrent effect upon Respondent Sanford, we note that Respondent Sanford testified to his
respect for Vermont’s streams and rivers and desire to reduce the problem of invasive species
such as knot weed. We therefore see no need to impose an additional penalty and hope and
expect that the penalty itself will be deterrent for Respondents to avoid future violations.

2 We note that ANR offered no evidence that Respondents intended to cause such a discharge. There is,
however, “no requirement that the State prove intent to establish a violation of § 1259.” Sec’y v. Irish, 169
Vt. 407, 416 (1999).

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        Subsection (7): The value of the time that all ANR officials committed to responding to
Respondent Sanford’s violations, including prosecution of this current violation, totals just
under $1,385. We direct Respondents to reimburse these costs as an additional penalty for his
violations.
        Subsection (8): At the time of trial, the credible evidence revealed that Respondent
Sanford took steps to remedy his violation, including mulching the disturbed area of the stream
bank.   Although ANR disputes that Respondents’ efforts were sufficient, we impose no
additional penalty.

                                             Conclusion
        For the reasons stated above, we conclude that Respondents Robert and Andrea Sanford
shall be liable for a total penalty in these proceedings of $ 4,385.00.

                         Rights of Appeal (10 V.S.A. § 8012(c)(4) and (5))
        WARNING: This Decision and the accompanying Judgment Order will become final if
no appeal is requested within 10 days of the date this Decision is received. All parties to this
proceeding have a right to appeal this Decision and Judgment Order. 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 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 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 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. 8.
        A Judgment Order accompanies this Decision. This concludes the current proceedings
before this Court in this enforcement action.
        Done at Berlin, Vermont this 2nd day of July, 2013.


                                                ______________________________________________
                                                Thomas G. Walsh, Environmental Judge


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