                                   STATE OF VERMONT

                                ENVIRONMENTAL COURT

               Secretary, Vermont Agency of
               Natural Resources, Plaintiff, }
                                             }
               v.                            }      Docket No. 226-11-99 Vtec
                                             }
               Lake Arrowhead Used Cars, }
               Defendant.

                       Decision and Order on Motions regarding Penalties

The Secretary of the Agency of Natural Resources is represented by Catherine Gjessing; in the
underlying proceedings that resulted in the Judgment Order of March 4, 2002, Defendant Lake
Arrowhead Used Cars was represented by Daniel S. Triggs, but in the subsequent proceedings on
whether the penalties should be reduced, Defendant was represented by its owner, Bruce
Moulton, representing himself.

The 2002 order was issued in a contempt proceeding for Defendant= s failure fully to comply
with a consent order (Assurance of Discontinuance) entered into by Plaintiff and Defendant in
late 1999, regarding abandonment of a radon-contaminated well. During the pendency of the
proceedings leading up to the 2002 order, the well was closed and not used, but had not been
filled with concrete to insure that it could not be used in the future.

In 1993 Defendant had obtained a state subdivision permit for a two-lot subdivision in Milton,
and had obtained a state water supply and wastewater disposal permit to construct a building on
Lot 1 of the subdivision. The permits contemplated that the building would be supplied with
drinking water by connection to the municipal water system, and required certification by an
engineer that the connection to the municipal water system was properly installed, prior to
occupancy of the building.

Defendant conducts a used car business in the building on Lot 1, and parks and displays the
inventory of used cars for the business outdoors on Lot 1. Defendant washes the inventory of
used cars to keep them looking attractive for prospective customers, using a large volume of
water. Due to the expense of using large volumes of municipal water for this purpose, Defendant
drilled a well on Lot 1 to develop a substitute source of cheaper water. In 1997, Defendant
requested an amendment to the 1993 state permits to substitute the drilled well as a water supply
source. However, that amendment was denied because the drilled well was contaminated by
radon, a radioactive contaminant occurring naturally in drilled wells in this area of Vermont.

This Court's 2002 decision discusses the reasons why radon and radionuclide contamination is of
concern in water used for drinking and for household uses such as washing and particularly for
showers, as radon readily escapes to the air when radon-contaminated water is sprayed into the
air and can be breathed in as a mist or aerosol, increasing the risk for lung cancer. Radon-
contaminated water can be treated for household use by filtration through an activated-carbon
filter or by aerating the water in the outside air where the radon can dissipate and be diluted by
the greater volume of air.

In 1997, the Agency notified Defendant of the contamination and directed Defendant to
abandon1 the drilled well and immediately to connect the building to the municipal water supply.
In 1998, the Agency sent Defendant a Notice of Alleged Violation for failing to abandon the
radon-contaminated well and failing to connect the building on Lot 1 to the municipal water
supply. In late 1999, Defendant and the Secretary of the Agency of Natural Resources entered
into an Assurance of Discontinuance that was entered as a court order. It required Defendant to
complete the construction and connection to the municipal water service line, to submit the
written report of a Vermont-certified registered engineer, and to abandon the existing radon-
contaminated drilled well.

Defendant did connect the building to the municipal water line, but constructed the connection
differently from the approved plans. Defendant applied for approval of the amended plans in
2001, but sought to continue the use of the drilled well solely for outside washing of the cars.
However, the water system did not receive the amended approval because the amended
application was not ruled to be complete and because the drilled well had not been abandoned.
During the pendency of the present litigation, Defendant closed and stopped using the drilled
well, but did not fill it in with concrete to render it unuseable, continuing to seek approval of its
use for car washing.

Defendant uses the municipal water supply for all water supply within the building. Defendant
connected the drilled well to a hose bib separate from the system connected to the municipal
water system, to avoid the possibility of cross-connection or contamination of the municipal
water supply, but as of the proceedings resulting in the Court= s 2002 order, the approved plans
had not been submitted so that the Agency could verify this fact.

Defendant sought to continue the use of the drilled well solely for outside washing of the cars, to
avoid paying municipal water fees for the amount of water needed for car washing. However, as
of the proceedings resulting in the Court= s 2002 order, Defendant had not actually filed any
application or proposal with the Agency to maintain the drilled well for this purpose only, and
had not proposed any treatment system for that water to protect the health of the employees,
customers, neighbors or passers-by who might be exposed to the aerosol spray from such car
washing.

Accordingly, the 2002 Judgment Order found Defendant to be in violation of the 1999 consent
order (Assurance of Discontinuance) by failing to obtain approval of the connection to the
municipal water supply line, by failing to certify construction of the building= s water system in
accordance with the approved engineering plans, and by failing to abandon (that is, to fill in with
concrete) the radon-contaminated drilled well. The March 2002 Judgment Order required
Defendant 1) within 30 days to submit all the remaining engineering information required to
complete the amendment application to the Agency; 2) to decide whether to pursue the concept
of installing a treatment system for the radon-contaminated well and using its water solely to
wash cars, and, if so, to determine within 21 days with an engineering consultant and the Agency
or Department of Health whether such a proposal is conceptually feasible; and 3) within forty-
five days either to abandon the drilled well and to submit certification that it was properly
abandoned, or to file a complete application proposing a treatment system to allow its water to be
used solely to wash cars. The March 2002 Judgment Order also required the parties to file an
amended Assurance of Discontinuance if such a treatment system were approved, and required
the well= s abandonment within two weeks after, and if, such a treatment system were denied.
The Agency served the March 4, 2002 order on Defendant on March 11, 2002.

Because the proceedings leading to the March 2002 court order were filed as a petition for
contempt rather than as either an enforcement of a final order under 10 V.S.A. ' 8014 or as a
new administrative order under 10 V.S.A. ' 8010, the Court had no jurisdiction to impose a
penalty for past violations or for violation of the 1999 consent order (Assurance of
Discontinuance). Being restricted to imposing a coercive prospective fine, the March 2002 order
required Defendant to pay a penalty of $50 per day for failure to meet the first deadline
(numbered 1 above); and to pay a penalty of $100 per day for failure to meet the other deadlines.
The Agency does not request that penalties be paid with respect to the first deadline, as the
application for approval of the water system was complete and approvable except for the issue of
abandonment of the drilled well.

The Agency seeks to collect penalties under the March 2002 order for some portion of the period
from 21 days after the March 4 order was served on Defendant on March 11, 2002, until
September 12, 2002, when Defendant= s engineer certified that the well had been properly
abandoned. If the entire 164-day period were counted, it would result in a penalty of $16, 400.

Over the course of the next several months after the March 2002 order, the drilled well remained
closed and not used while the Agency worked with Defendant towards testing the water and
determining whether a treatment system would be feasible. At some time in April, 2002,
Defendant requested an extension as Mr. Moulton was still determining whether to abandon the
drilled well or to find a treatment system to enable its continued use. The well test results by the
Agency on May 1, 2002 showed a very high level of gross alpha particles; however, Defendant
did not buy the test package for the other testing needed for radium-226 and radium-228 until
April 30, 2002, and then learned that those two tests take six and eight weeks to be completed.
He informed his attorney, but did not contact the Regional Engineer directly.

The Agency gave Defendant an extension2 by a letter dated May 1, 2002, for Defendant to
contact the Regional Engineer by May 7, 2002, and allowing 21 days after that meeting for
Defendant either to abandon the well or to apply for approval of a treatment system for the well.
Allowing for the state Memorial Day weekend holiday, it is fair to treat Monday, June 3, 2002
(rather than May 28, 2002) as the date by which compliance would have been due under that
extension (or, at the very least, an additional request for an extension should have been made).
Defendant consulted with approximately seven engineers regarding the possibility of treating the
water, before deciding that the treatment option was not feasible economically. Defendant= s
attorney did not inform the Agency until a letter received June 19, 2002, that Defendant had
decided to abandon the idea of finding a treatment system for the drilled well. That letter also did
not request a further extension; it merely stated that Defendant= s engineer would be proceeding
to implement procedures to seal the well and to certify its abandonment.
If Defendant had requested an extension, the Agency would have granted an extension of two
weeks to 30 days to actually have the well abandoned and the engineer= s certification filed.
Thus, if the extension request had been made by the expiration of the first extended deadline on
June 3, 2002, the Agency would have extended the compliance date at most to July 8, 2002, the
Monday after the July 4 holiday weekend.

The well was in fact abandoned (that is, was filled with concrete) on or about August 27, 2002,
based on the receipt for the concrete; the engineer= s report of the abandonment was filed with
the Agency on September 12, 2002. Even giving the benefit of all possible extensions to
Defendant, the period of noncompliance with the March 2002 order was 51 days (from July 8 to
the actual abandonment on August 27, 2002) or 67 days (to the engineer= s certification). As
there was evidence of Defendant= s difficulty in getting the engineer to perform work in a timely
fashion, we will use the August 27, 2002 date. The penalty for this period accrued under the
March 2002 order would be $5,100.

Defendant has spent approximately $40,000 on the water system, presumably including his
unsuccessful efforts regarding the drilled well. When the March 2002 order was issued, Mr.
Moulton was in Florida from February 20 on a buying trip for used car inventory for the
business. He had to return unexpectedly to Vermont on March 9 to deal with a break-in at his
house in which goods were stolen valued at about $30,000, and had to make several court
appearances to deal with prosecutions resulting from the break-in. He was served with the March
2002 court order in the present case on March 11, 2002. In mid-March 2002 he also entered into
a purchase and sale agreement on other property, on which he expected to close in April 2002,
although title and deed problems with that transaction delayed the closing until mid-September.
He had to return to Florida March 21 through 26 to complete the buying trip. He was also
involved in April and May with serious divorce and custody proceedings, including disputes with
his ex-wife over custody and money taken from his business account that occupied most of his
attention through June.

Defendant has moved for the Court to forgive the penalties imposed in the March 2002 order for
this period, arguing that he had already paid $1,500 in penalties under the 1999 Assurance of
Discontinuance, that he had spent around $40,000 on the water system by the time the work was
in fact done, that the drilled well was not used during the time period, and that the personal
events in Mr. Moulton= s life during that period prevented him from attending properly to his
business affairs. The Agency seeks at least $2,000 in penalties in recognition of the long period
of time necessary to achieve compliance in this matter, the fact that Mr. Moulton did not make
achieving compliance a priority in his life at the time, resulting in inadequate communications to
the Agency from him and his agents, and the Agency= s expenses in pursuing this matter.

It is important to understand that the penalties imposed by the March 2002 contempt order were
prospective and accrued automatically under that order due to Defendant= s non-compliance with
it. The Agency simply needed to prove the dates of compliance or noncompliance under that
order.

However, considering the extensions that were granted or would have been granted by the
Agency as if they had been approved by the Court, and the arguments of Mr. Moulton and the
Agency, we will reduce the penalty from the $5,100 accrued under the March 2002 order to
$3,100, recognizing the costs to the Agency from the long period it took to get this matter
resolved, and the need for Defendant to have kept in communication with the Agency about his
efforts towards compliance, but also recognizing the personal stress on Mr. Moulton during that
period and the amounts he had expended on efforts to achieve compliance. The parties may agree
upon a payment schedule for the penalty as reduced by this order, without needing to move to
amend this order.

Done at Barre, Vermont, this 5th day of May, 2002.



___________________
Merideth Wright
Environmental Judge



                                            Footnotes
1.
     "Abandonment" of a well, as the term is used in the field of water supply regulation and in
the Vermont Water Supply Rules, requires filling the well in with concrete, not merely ceasing
its use. This method is required so that if the well is drilled through several aquifers or water-
bearing layers, the concrete will seal the fractures within the well and prevent the contaminated
water from cross-contaminating other wells in the area drawing from uncontaminated aquifers.
2.
     Technically this extension should have been requested as an amendment of the March 4,
2002 court order; however, it was reasonably treated by the Agency as the period during which
the Agency would forbear from seeking to have the penalties imposed under that order
