1 STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 33-3-16 Vtec. SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES, Plaintiff

v.
SOUTH VILLAGE OWNERS ASSOCIATION, INC., Respondent.

JUDGMENT ORDER The above-captioned matter concerns the prosecution of an Administrative Order issued by the Vermont Agency of Natural Resources (“Agency”) on February 1, 2016 against South Village Owners Association, Inc. (“Respondent”) based upon allegations that Respondent violated various provisions of both its July 29, 2013 Public Community Water System Permit to Operate (“Permit”) and Vermont’s Water Supply Rule (the “Ru les”). On April 6, 2016, Respondent requested a hearing on the Administrative Order. T he Court conducted the requested merits hearing on October 11, 2016. Respondent failed to appear and the Agency presented evidence during the one day of trial. At the conclusion of the Agency’s case, the Court rendered its Findings of Fact and Conclusions of Law on the record. This Judgment Order is issued to memorialize this Court’s order and decree. The court finds as follo ws: 1. Pursuant to 10 V.S.A. §8012(b), the Court hereby AF FIRMS the February 1, 2016 Administrative Order, with the modifications set fo rth herein, and concludes that Respondent violated:

a. Condition II.B.1 of the Permit by failing to timely submit an Operation and Maintenance (“O&M”) Manual to the Agency. b. Conditions II.B.3 and IV.B of the Permit by failing to submit monthly operations reports as required.

c. Conditions II.B.4 and II.C of the Permit by failing to submit the required report identifying the status of the installation of a flow-paced disi nfectant system.2

d. Conditions II.B.5 and II.C of the Permit by failing to submit the required report identifying the status of the installation of a redundant boost er bump.

e. Conditions II.B.6 and II.C of the Permit by failing to submit the required report identifying the status of the necessary repairs to the pump hou se/treatment building. f. Conditions II.B.7 and II.C of the Permit by failing to submit the required report identifying the status of the necessary hydrant color-coding.
g. Conditions II.B.9 and II.C of the Permit by failing to submit the required report identifying the status of the necessary grading around Well #12

. h. Rule § 4.0.1 by constructing improvements to a publ ic community water system without a permit. i. Rule §§ 10.5 and 10.5.1 by failing to submit consum er confidence reports.
2. The Court bases its conclusion that these violation s occurred on the evidence presented at trial, the Findings of Fact and Conclusions of Law that the Court recited on the record after trial, and the following written findings of fact a s required by 10 V.S.A. §8012(c).

a. Respondent owns and operates the public community w ater systems serving the South Village Owners Association, which is located in War ren, Vermont near the Sugarbush ski resort (the “System”). b. The System serves no more than four hundred forty-f ive (445) people through seventythree (73) year-round service connections.

c. Condition II.B of the Permit contains a compliance schedule setting forth certain actions Respondent was required to complete. d. Condition II.C required Respondent to submit a repo rt to the Drinking Water and Groundwater Protection Division (the “Division”) wi thin fifteen (15) days after the required compliance date indicating whether Respond ent had completed the required actions. As of the trial date, Respondent filed no such report.

e. Condition II.B.1 required Respondent to submit an e lectronic copy of an O&M Manual to the Division for review and approval on or before F ebruary 1, 2014. As of the date of trial, Respondent had not submitted an O&M Manual to the D ivision.3

f. Conditions II.B.3 and IV.B. required Respondent to submit monthly operations reports no later than the 10 th day of each month indicating the metered amount of water produced and the chlorine residual taken at the entry point to the distribution system for each day that a chemical disinfectant is applied. The last time Respondent submitted a monthly operation report was March 2014.
g. Condition II.B.4 required Respondent to install a m eans of applying flow-paced chemical disinfectant on or before November 1, 2013. As of the date of trial, Respondent had not submitted a report confirming that it had done so, in violation of Condition II.C. h. Condition II.B.5 required Respondent to install a r edundant booster pump in the upper pump station on or before January 1, 2014. As of t he date of trial, Respondent had not submitted a report confirming that it had done so, in violation of Condition II.C.
i. Condition II.B.6 required Respondent to make all ne cessary repairs to the pump house/treatment building in order to protect agains t rodent and insect infiltration on or before December 1, 2013. Ben Montross, the Divisio n’s Compliance and Support Services Section Chief, testified that although Respondent h as constructed a new pump house/treatment building, Respondent is still using the older pump house/treatment building covered by this condition. In addition, a s of the date of trial, Respondent had not submitted a report confirming that it had repaired that pump house/treatment building, in violation of Condition II.C. j. Condition II.B.7 required Respondent to complete co lor-coding of the flushing hydrants and inform the local fire department that the color -coded flushing hydrants are not to be used for fire protection on or before December 1, 2 013. Mr. Montross testified that Respondent has color-coded the flushing hydrants, b ut failed to submit a reporting stating so by the deadline set forth in the Permit, in viol ation of Condition II.C. k. Condition II.B.9 required Respondent to re-grade th e area around Well #12 using a backfill material of high clay content in order to reduce th e potential for surface water collection around the well casing and contaminate the source o n or before December 1, 2013. Mr. Montross testified that the area around Well #12 ha s been properly re-graded, but4

Respondent failed to submit a reporting stating so by the deadline set forth in the Permit, in violation of Condition II.C. l. The Agency notified Respondent of these violations in a Notice of Alleged Violation dated April 16, 2014.

m. On September 11, 2015, the Division issued Responde nt a public water system construction permit to construct certain improvemen ts to the System (the “Construction Permit”). Constructing these improvements will cor rect the violations of Conditions II.B.4, II.B.5, and II.B. 6 of the Permit. Respondent has failed to confirm for the Division that these improvements have been completed. On October 10, 2016, Division personnel inspected the System and confirmed that while some of the improvements authorized by the Construction Permit have been constructed, they have not been connected to the system and, therefore, the violations of Conditions II.B.4, II.B.5, and II.B. 6 of the Permit persist.

n. Rule § 4.0.1 prohibits the construction, alteration , renovation, or conversion for use as a public or a non-public water system requiring a per mit, of any system or any portion thereof, except as provided in Section 21-4.0.2., w ithout first receiving a source permit or construction permit from the Secretary.

o. On August 4, 2014, Respondent notified the Agency v ia email that it had installed one thousand five hundred feet (1,500) of new distribut ion lines, constructed a new pump house, and connected two wells to the System. Respo ndent did not obtain a construction permit prior to construction of these improvement i n violation of Rule § 4.0.1.
p. Rule §§ 10.5 and 10.5.1 require that all public com munity water suppliers prepare and directly deliver an annual consumer confidence repo rt regarding the quality of the water by July 1 of each year to the customers of the wate r system based on the immediately preceding calendar year and that the report must be sent to the Agency no later than July 1 of each year. Mr. Montross testified that Respon dent failed to submit consumer confidence reports to the Agency by July 1 in 2013, 2014, and 2015. The Agency notified Respondent of its failure to do so in 2014 in a Sep tember 10, 2015 Notice of Alleged Violation.5

q. On January 2, 2014, this Court entered as a judgmen t in a prior proceeding against Respondent an Assurance of Discontinuance between R espondent and the Agency of Natural Resources for previous violations of Vermon t’s environmental laws, rules, and regulations. See Docket No. 183-12-13 Vtec.

r. The Agency incurred at least $78.08 in enforcement costs associated with serving the Administrative Order on Respondent.
3. Pursuant to 10 V.S.A. §8010, the Court considered t he statutory criteria listed therein based on evidence provided during the trial in determinin g the amount of penalty for the violations and took the following into consideration:

a. 8010(b)(1): Respondent’s violations presented sign ificant potential to result in serious impacts on public health, safety, welfare, and the environment. The source of these impacts includes, but is not limited to the possibi lity that the violations could result in a depletion of groundwater serving both the system an d adjacent wells and the possibility that the water within the system could become eithe r overly treated or under treated. Should the users of the System ingest overly treate d water, they could suffer significant adverse health effects from such things as dermal i rritation from contact with excessively chlorinated water. Should the users of the System ingest under treated water, they could suffer significant adverse health effects from such things as gastrointestinal distress, up to and including in certain instances death, from d rinking water contaminated with such things as E. coli

. b. 8010(b)(2): The Court finds that none of the evide nce presented includes any mitigating
circumstances.

c. 8010(b)(3): Respondent had knowledge of the laws, rules, and regulations applicable to the Systems, as well as of the violations discussed above through, at a minimum, its correspondence with Division personnel, the permits that it received to operate and improve the System, and the Notices of Alleged Viol ation that it received from the
Division.6

d. 8010(b)(4): Respondent’s record of non-compliance includes a previous judgment against it in Docket No. 183-12-13 Vtec, as well as the pro longed duration of the violations at issue in this case despite notice from the Agency t hat those violations existed.

e. 8010(b)(6): The penalty set forth below is adequa te for deterrence. f. 8010(b)(7): The Agency’s costs of enforcement in t his matter include $78.08 associated with serving its Administrative Order on Respondent

. g. 8010(b)(8): The violations occurred over a long pe riod of time and are on-going. Mr. Montross testified that some of the violations date back to 2012 and 2013.
4. The Court does hereby exercise its discretion and a uthority under 10 V.S.A. §8012(b)(4) to modify the penalty amount found in Paragraph A of t he Administrative Order and orders as follows:

a. Respondent shall pay a penalty of $35,000.00 within thirty (30) consecutive calendar days from the date of this Judgment Order. Payment shal l be by check made payable to the “Treasurer, State of Vermont” and forwarded to: Administrative Assistant Environmental Compliance Division Agency of Natural Resources 1 National Life Drive, Davis 2 Montpelier, VT 05620-3803

5. The Court specifically directs that the Respondent comply with paragraphs B through D of the Administrative Order within the respective deadline s as calculated from the date of this Judgment Order.
6. The Court further directs that Mr. Zeke Church, as the designated agent of the Respondent, to comply with the following:

a. Within thirty (30) consecutive calendar days from t he date of this Judgment Order, Mr. Church or his successor agent for Respondent shall mail copies of this Judgment Order, including a copy of the Administrative Order, to al l current members of the South Village Owners Association via certified mail and certify i n writing to both the Court and the Agency that he has done so.7

b. Within thirty (30) consecutive calendar days from t he date of this Judgment Order, Mr. Church or his successor agent for Respondent shall provide to the Agency in writing a list of all the current members of the South Village Own ers Association.

c. Mr. Church or his successor agent for Respondent sh all send written verification to all members of the South Village Owners Association tha t it has complied with paragraphs B through D of the Administrative Order no later than fifteen (15) days after compliance is reached.

Rights of Appeal (10 V.S.A. §§8012(c)(4) and (5)): WARNING: This Decision will become final if no ap peal is requested within 10 days of the date this Decision is received . All parties to this proceeding have a right to a ppeal this Decision. The procedures for requesting an appeal are found i n the Vermont Rules of Appellate Procedure (V.R.A.P.) subject to the Vermont Rules for Environ mental Court Proceedings (V.R.E.C.P.) 4(d)(6). Within 10 days of receipt of this Order, any party seeking to file an appeal must file the notice of appeal with the Clerk of this 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 Cou rt operates as a stay of payment of a penalty, but does not stay any other aspect of an o rder issued by this Court. 10 V.S.A. §8013(d). A party may petition the Supreme Court for a stay u nder the provisions of V.R.C.P. 62 and
V.R.A.P. 8.

Electronically signed on October 17, 2016 at Newfan e, Vermont, pursuant to V.R.E.F. 7(d).

________________________________ Thomas S. Durkin, Judge Environmental Division