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STATE OF VERMONT 

SUPERIOR COURT ENVIRONMENTAL DIVISION

Environmental Division Unit Docket No. 143-10-17 Vtec

Agency of Natural Resources, 

 Petitioner 

 v. 

Westford Fire District 1, 

 Respondent 

DECISION ON THE MERITS 

This matter arises out of Respondent Westford Fire District 1’s (Respondent) failure to 

submit an Operation and Maintenance Manual and failure to submit monthly operating reports 

to the Agency of Natural Resources relating to Respondent’s public community water system in 

Westford, Vermont. In a July 31, 2017 Administrative Order (AO),1 the Vermont Agency of 

Natural Resources (ANR) alleges violations of the Vermont Water Supply Rules (VWSR), 

Subchapter 21-7, § 7.11 and Subchapter 21-9, § 9.1.2 and the Respondent’s Permit to Operate a 

Public Community Water System. The AO sets out factual allegations describing Respondent’s 

failures. The AO does not seek compliance as the Respondent has come into compliance at this 

time; however, ANR seeks administrative penalties of $9,000 for the violations. Respondent 

timely requested a hearing on the AO with this Court. 

The Court conducted a merits hearing at the Vermont Superior Court, Costello 

Courthouse in Burlington, Vermont on February 21, 2018. Appearing at the trial were Randy J. 

Miller, II, Esq. representing ANR and Ryan P. Kane, Esq. representing Respondent. 

Findings of Fact 

 Based upon the evidence presented at trial, the Court renders the following Findings of 

Fact and Conclusions of Law. 

1. Respondent is a municipality of the State of Vermont, located in the Town of Westford. 

 

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 The AO was filed with the Court on October 25, 2017. 
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2. Respondent operates a public community water system known as the Westford Fire 

District 1 Water System (the System) located in Westford, Vermont, SPAN # 72022910854, 

WSID#VT0005450. 

3. The System serves approximately 50 residential users through approximately 23 service 

connections. 

4. On June 24, 2013, the Drinking Water and Groundwater Protection Division (DWGPD) 

issued the System a Permit to Operate (PTO). 

5. Pursuant to the Vermont Water Supply Rule (VWSR), all public water systems shall have 

an Operation and Maintenance (O&M) Manual approved by the Secretary of ANR and shall be 

operated in a manner consistent with the approved O&M Manual. 16-3 Vt. Code. R. § 500:7.1.1. 

6. The PTO required the System to submit an electronic copy of an O&M Manual for review 

and approval by the Secretary on or before December 31, 2013. 

7. In 2013, Respondent provided an O&M Manual that was insufficient to comply with 

requirements. 

8. Respondent failed to submit an approvable electronic copy of an O&M Manual for review 

and approval by the Secretary before December 31, 2013. 

9. By failing to timely submit an O&M Manual, Respondent violated the PTO, Section II(B)(1) 

and VWSR Subchapter 21-7, § 7.1.1. 

10. The delay in submitting an updated O&M Manual was partly because Respondent was 

considering potential physical and/or operational modifications to the system which could have 

required modifications to the O&M Manual. Those changes never came forward. 

11. Respondent never communicated this situation to ANR. 

12. Pursuant to the VWSR, all public water systems must submit monthly water system 

operating reports to the Secretary of ANR. 16-3 Vt. Code. R. § 500:9.1.2. This rule requires 

monthly reports to include data on the amount of water produced, temperature, turbidity, 

residual chlorine and fluoride, pH analysis, CT values, and any other information required by a 

specific permit. Id. The PTO here requires the reports to include daily meter reading data, and 

data regarding daily disinfectant (i.e. chlorine) residual entering the distribution system for each 

day disinfectant is introduced. PTO Section IV(B)(1). 

13. These levels (especially the chlorination level) need to be within an acceptable range, 

meaning chlorine concentrations need to be high enough to treat water but not too high to 
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adversely impact human health. Without these monthly reports showing daily chlorination 

levels, there is the possibility of adverse health effects from concentrations of chlorine that are 

either too low or too high. 

14. From August 2013 to September 2016, Respondent failed to file monthly operating 

reports. 

15. Respondent did file once-per-month bacteriological data for some of this period. 

16. As a result of failing to file monthly operating reports, Respondent violated the PTO, 

Section II(B)(5) and VWSR Subchapter 21-9, § 9.1.2.

17. On August 25, 2014, ANR provided Respondent with a written Sanitary Survey which 

detailed the violations at issue in this matter and advised Respondent of the need to respond to 

the violations and the possibility of an enforcement action. 

18. On November 17, 2014, the DWGPD issued a Notice of Alleged Violation (NOAV) notifying 

Respondent of the PTO and VWSR violations. The NOAV instructed Respondent to submit an 

O&M Manual by December 19, 2014, and to begin submitting monthly operating reports by 

January 10, 2015. 

19. In October of 2016, Respondent submitted monthly reports for January to September 

2016. Respondent filed the October 2016 report in November 2016, and has submitted monthly 

reports on time since then. 

20. Respondent filed its O&M which ANR approved on November 7, 2017. 

21. R. J. Moore is a mechanical engineer and the Chairman of Respondent. As Chairman, Mr. 

Moore is responsible for daily oversight of the System. 

22. Randy Devine is the System Operator and certified in operating a public community water 

system. 

23. Mr. Moore understood that that the System Operator, Randy Devine, was initially filing 

the required monthly reports. 

24. At some point communication between Mr. Devine and Mr. Moore suggested that Mr. 

Moore could file the reports, and Mr. Devine stopped filing the reports. 

25. Mr. Moore was not initially aware that Mr. Devine stopped reporting. 

26. Respondent’s annual operating budget is approximately $18,000. 
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Determining Violations and Penalty Assessment 

When a respondent requests a hearing on an AO, we have the authority to determine 

whether the alleged violation occurred. 10 V.S.A. § 8012(b)(1). In this matter, Respondent does 

not contest that the violations occurred. Having found violations, we are required to “determine 

anew the amount of a penalty” that should be assessed against the respondent challenging the 

ANR order. Id. § 8012(b)(4). We therefore review the evidence before the Court and determine 

an appropriate penalty assessment, pursuant to the eight subsections of 10 V.S.A. § 8010(b)(1)–

(8). 

ANR, and this Court in this proceeding, must consider seven factors when assessing a 

penalty: 

(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; 

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

existed; 

(4) the respondent’s record of compliance; 

(5) [Repealed.] 

(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. 

10 V.S.A. § 8010(b)(1)–(8). The maximum penalty for each violation is $42,500, plus $17,000 for 

each day a penalty continues. Id. § 8010(c)(1). Generally, ANR treats multiple violations of the 

same permit, or related violations generally, as one violation when calculating penalties. We 

generally take the same approach. 

The State may also “recapture economic benefit” that the violator may have derived from 

the violation, up to the total maximum penalty allowed of $170,000. Id. § 8010(c)(2). ANR did 

not pursue a claim of economic benefit and we do not further consider the issue. 

In an effort to standardize penalties and ensure a fair process, ANR uses a form that is 

based on the seven factors. ANR rates the severity of the violations from 0 to 3 for factors (1), 

(3), (4) and (8), and determine an initial penalty score. The highest possible initial score is a 15, 

which equates to an initial penalty of $42,500 for a Class I violation, the maximum allowed. 

Classes II, III, and IV carry lower maximum penalties of $30,000, $10,000 and $3,000 respectively. 

The initial penalty can then be adjusted based on penalty factors (2), (6) and (7). If the violator 
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signs an Assurance of Discontinuance, agreeing not to dispute the action, the final penalty may 

be reduced by 25%. 

Number of Violations 

At the outset of the Court’s penalty assessment, we recognize that the AO at issue in this 

matter alleges two violations: first, the failure to submit an O&M Manual for review and approval, 

in violation of VWSR Subchapter 21-7, § 7.1.1 and Respondent’s PTO Section II(B)(1); and second, 

the failure to submit monthly operating reports, in violation of VWSR Subchapter 21-9, § 9.1.2 

and Respondent’s PTO Section II(B)(5). 

ANR, and therefore this Court on appeal, has discretion to calculate and assess one 

penalty for events that result in more than one violation or to calculate and assess a separate 

penalty for each violation stemming from the same activity. In the AO at issue, ANR considered 

the two alleged violations in one penalty assessment. Because the alleged violations stem from 

same activity, that being the operation of a public community water system, we also conduct a 

single penalty assessment. 

Class of Violation(s) 

The parties do not dispute the core facts of the violations. Respondent offers that the 

overall classification of the violations as Class II is more appropriately a Class III violation and that 

there are mitigating circumstances that justify a reduced penalty. Thus, Respondent contests the 

amount of the ANR fine. 

We conclude that the failure to submit an O&M Manual and monthly operating reports 

for a public community water system serving approximately 50 residential users through 

approximately 23 service connections present a Class II violation. Under ANR’s standard 

Administrative Penalty Form, a Class II violation includes violations which present more than a 

minor violation of a statute listed in 10 V.S.A. § 8003(a) or a rule promulgated under statute listed 

in 10 V.S.A. § 8003(a), or a related permit. Respondent suggests that the events in this matter 

are more appropriately a Class III violation; that being a minor violation of a statute listed in 10 

V.S.A. § 8003(a) or a rule promulgated under statute listed in 10 V.S.A. §8003(a), or a related 

permit. 

Most notably, the monthly operating reports for a public community water system 

account for daily chemical levels in the drinking water supply. These levels (especially the 

chlorination level) need to be within an acceptable range, meaning chlorine concentrations need 
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to be high enough to treat water but not too high to adversely impact human health. Without 

these monthly reports showing daily chlorination levels, there is the possibility of adverse health 

effects from concentrations of chlorine that are either too low or too high. In a system serving 

50 users, this presents more than a minor violation, and we therefore classify the violations as 

Class II.2

Calculation of Base Penalty: 

Penalty Factor 1: Actual or Potential Impact on Public Health, Safety, Welfare and the 

Environment 

Subsection (1) of 10 V.S.A. § 8010(b) requires consideration of “the degree of actual or 

potential impact on public health, safety, welfare and the environment resulting from the 

violation.” 

In considering ANR’s penalty calculation form, we assign a value of “1” to the degree of 

impact on public health, safely, and welfare (ANR form Question 1) as we conclude there was no 

evidence of actual impact, however, the violations present moderate potential impact of adverse 

health effect from either too low or too high concentrations of chlorine. If chlorine 

concentrations are too low, the water may have bacterial quality concerns. If chlorine 

concentrations are too high, the human exposure has the potential for adverse health effects. 

The failure to report data regarding these chlorination levels inhibits ANR’s ability to ensure 

public drinking water is safe for consumption, resulting in a moderate potential adverse impact 

to public health. 

 We assign a value of “0” to the degree of impact on the environment (ANR form Question 

2) as we conclude there was no actual impact and minor potential impact to the environment. 

Penalty Factor 3: Whether the Respondent Knew or Had Reason to Know the Violation 

Existed 

Subsection (3) of 10 V.S.A. § 8010(b) requires consideration of “whether the respondent 

knew or had reason to know the violation existed.” The ANR penalty calculation form includes 

 

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 We understand that there is no allegation or evidence that the actual chlorine levels were too high or too 

low. If that had been the case, this would likely be a Class I violation, because it would “present[] a threat of 

substantial harm to the public health, safety, or welfare or to the environment, or . . . has caused substantial harm 

to the public health, safety, or welfare or to the environment.” ANR Administrative Penalty Form. 

The classification of the second alleged violation is less clear as ANR did not provide an offer on its 

classification. Even though the system appears to have been operated properly, the failure to have an approved 

O&M manual increased the risk of the system not being properly operated which would also align with a Class II 

violation. 
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two parts related to this subsection: 3a, knowledge of the requirements, and 3b, knowledge of 

the facts of the violation. 

Respondents knew or should have known about their legal requirements of the VWSR 

and the facts of the violation. Both Mr. Moore and Mr. Devine are experienced in the regulation 

of the public community water systems. Respondent has a PTO with clear express conditions. 

Thus, in considering ANR’s penalty calculation form, we assign a value of “2” for respondents’ 

knowledge of requirements (ANR form Question 3a, which assigns a “2” where respondent “had 

a permit or permit by rule”). 

As to Respondent’s knowledge of the facts of the violations, we assign a value of “3,” 

concluding there is “clear evidence that the respondent knew the violation existed” (ANR form 

Question 3b). For instance, Mr. Moore received and was aware of ANR’s Notice of Alleged 

Violation and the results of the Sanitary Survey both expressly addressing the violations. Lastly, 

there were several e-mails to and from Mr. Moore and ANR representatives acknowledging the 

violations. 

Penalty Factor 4: Respondent’s Record of Compliance

Subsection (4) of 10 V.S.A. § 8010(b) requires consideration of “the respondent’s record 

of compliance.” The evidence presented shows that Respondents has no previous violations of 

ANR’s regulations. In considering ANR’s penalty calculation from, we assign a value of “0” for this 

subsection (ANR form Question 4). 

Penalty Factor 8: Length of Time the Violation Existed 

Subsection (8) of 10 V.S.A. § 8010(b) requires consideration of “the length of time the 

violation has existed.” According to ANR, violations of longer than 3 years are of long duration. 

The violated in this matter remained in existence from December 31, 2013 to October 2016. This 

nearly three-year period is therefore of moderate duration. In considering ANR’s penalty 

calculation form, we assign a value of “2”, concluding that this violation existed for a moderate 

duration (ANR form Question 5). 

In adding the above penalty scores, we arrive at a base score of 5, which equates to a 

base penalty of $9,000 for a Class II violation. See ANR form Question 6. 

Penalty Adjustments: 

We next consider appropriate adjustments to the base penalty. 
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Penalty Factor 2: Mitigating Circumstances 

Subsection (2) of 10 V.S.A. § 8010(b) requires consideration of “the presence of mitigating 

circumstances, including unreasonable delay by the Secretary in seeking enforcement.” This 

matter does not present unreasonable delay, as ANR continually worked with Respondent to gain 

compliance. 

Respondent offers what it considers to be justification for both its failure to comply and 

its subsequent untimely compliance. First, Mr. Moore offers that the System Operator, Randy 

Devine, was initially filing required reports and at some point communication between Mr. 

Devine and Mr. Moore suggested that Mr. Moore could file the reports. Unfortunately, Mr. 

Moore did not understand that Mr. Devine stopped reporting. These facts lead us to conclude 

that the initial lack of reporting was not purposeful. Once Mr. Moore learned of the lack of 

reporting, however, he should have taken all appropriate action to timely report. Nevertheless, 

it took nearly three years for Respondent to comply with reporting requirements. There is no 

reasonable justification for this delay. 

Mr. Moore also offers that Respondent was reporting a monthly bacterial sample result 

and, therefore, any potential impacts for failing to comply with reporting requirements were 

lessened. One monthly result is only a snapshot of the operation of the System when compared 

to daily monitoring. For example, these readings do not capture residual chlorine levels. 

Furthermore, the ANR’s requirements do not allow substitution of the monthly bacterial sample 

reports in place of the monthly reporting of daily operations and meter readings. 

As for the failure to timely provide an O&M Manual, Mr. Moore offers that Respondent 

did provide an O&M Manual that was insufficient to comply with requirements. Furthermore, 

Mr. Moore offers that Respondent was considering potential physical and/or operational 

modifications to the System which could have required modifications to the O&M Manual. Thus, 

Respondent delayed creation of an O&M Manual for many months while it retained engineers 

and evaluated potential changes. Those changes never came forward. While this approach is 

understandable from a practical or efficiency viewpoint, Mr. Moore never communicated this 

situation to ANR and ANR’s regulations do not allow for long periods of non-compliance while 

public community water systems evaluate potential modifications. As such, we conclude that 

the delay was not warranted. 
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Lastly, Respondent offers that its annual operating budgets is approximately $18,000 and 

that a penalty of $9,000 is therefore significant. Again, while this concern is understandable, 

unfortunately, neither the enforcement statute, 10 V.S.A. § 8010, nor ANR’s standardized 

calculation form consider a respondent’s ability to pay. Our experience is that ANR may consider 

the ability to pay in resolving actions prior to trial. 

Based on these facts, the Court concludes there are no mitigating circumstances to reduce 

Respondents’ penalty. 

Penalty Factor 6: The Deterrent Effect 

Subsection (6) of 10 V.S.A. § 8010(b) requires consideration of “the deterrent effect of 

the penalty.” The Secretary may increase the penalty amount up to the maximum allowed in the 

class of violation if the Secretary determines that a larger penalty is reasonably necessary to deter 

the respondent and the regulated community from committing future violations. Id. In this 

matter the maximum penalty is $30,000 and the base penalty we have calculated is $9,000, 

allowing for a maximum deterrent of $21,000. 

In reviewing the importance of establishing a penalty that will have a deterrent effect 

upon Respondents, we consider that Respondents, although not timely, were cooperative with 

ANR throughout the investigation and resolution of the violations. The level of penalty in this 

matter is significant when considering Respondent’s annual operating budget. We conclude that 

the facts of this matter do not warrant a deterrent portion to be added to the initial base penalty. 

Penalty Factor 7: State’s Actual Costs of Enforcement 

Subsection (7) of 10 V.S.A. § 8010(b) requires that we consider “the State’s actual cost of 

enforcement.” The value of the time that all ANR officials committed to responding to 

Respondent’s violations, including prosecution of this matter, totals $933.50. We direct 

Respondents to reimburse these costs as an additional penalty for the violations. 

Economic Benefit 

The Secretary may recapture any economic benefit Respondents may have gained by 

violating its permit. 10 V.S.A. § 8010(c). 

While we believe that recapturing economic gain from a violation is appropriate, we 

conclude that based on the evidence before the Court, it appears that Respondents did not 

realize a gain or economic benefit from the violations. Thus, we decline to impose any amount 

of additional penalty relating to economic gain. 
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Reduction for Settlement 

Finally, ANR may reduce a respondent’s penalty when the respondent admits the 

violation and enters an Assurance of Discontinuance fully resolving the compliance issue. Such a 

reduction is not warranted in this matter as Respondents did not resolve their dispute by 

settlement. 

The Court therefore arrives at the base penalty of $9,000 and adds $933.50 as 

reimbursement of ANR’s costs of enforcement. The total penalty in this case is $ 9,933.50. 

Conclusion 

For the reasons stated above, we conclude that for the violations at issue within the July 

31, 2017, AO Respondents shall be liable for a total penalty of $9,933.50. 

Electronically signed on March 7, 2018 at 10:55 AM pursuant to V.R.E.F. 7(d). 

_________________________________________ 

Thomas G. Walsh, Judge 

Superior Court, Environmental Division 

Rights of Appeal (10 V.S.A. § 8012(c)(4)–(c)(5)) 

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 Vermont Rule for Environmental Court Proceedings (V.R.E.C.P.) 4(d)(6). Within 14 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.