1 

STATE OF VERMONT 

SUPERIOR COURT ENVIRONMENTAL DIVISION

Environmental Division Unit Docket No. 65-5-12 Vtec

23-3-15 Vtec

Agency of Natural Resources, 

 Petitioner 

 v. 

Robert Colaceci, 

 Respondent 

ALTERED DECISION ON MOTION and 

ALTERED DECISION ON THE MERITS1

The present matter concerns two administrative orders (AOs) issued by the Vermont 

Agency of Natural Resources (ANR) for alleged violations at Respondent Robert Colaceci’s used 

tire facility and auto repair business on Route 15 on the Wolcott/Hardwick town line. ANR issued 

the first AO in 2012 (the 2012 AO), and Mr. Colaceci timely requested a hearing (Docket No. 65-

5-12 Vtec). ANR served the second AO on Mr. Colaceci on March 17, 2015 (the 2015 AO). Mr. 

Colaceci failed to request a hearing on that AO within fifteen days as required by statute. See 10 

V.S.A. § 8012(c). The Court issued an order on April 16, 2015, at which point the 2015 AO became 

a final judicial order. See 10 V.S.A. § 8008(d)(2). After lengthy procedural delays, the Court held 

a hearing on the 2012 AO on May 15, 2015. On May 26, 2015, Mr. Colaceci filed a motion to 

reopen the 2015 AO and to dismiss both enforcement actions (Docket No. 23-3-15 Vtec). That 

motion, along with the merits of the 2012 AO, are now before the Court. ANR is represented by 

Attorney John Zaikowski in these matters. Mr. Colaceci is self-represented. 

 

1

 This altered decision is in response to the Agency of Natural Resources’ request to alter or amend the 

Court’s August 19, 2016 Judgment Order and Decision on the Merits in docket number 65-5-12 Vtec. pursuant to 

V.R.C.P. 59(e), and to reconsider the Court’s August 19, 2016 Decision on Respondent’s Motion and Decision on the 

Merits and Judgment Order in docket numbers 65-5-12 and 23-3-15 Vtec. based on a clerical error pursuant to 

V.R.C.P. 60(a). Two changes are reflected in this altered decision. First, the 2012 Administrative Order against the 

Respondent is reinstated and certain injunctive remedies are ordered. Second, appeal language typically found at 

the conclusion of this Court’s decisions on appeals of Administrative Orders has been added. The newly added 

sections are the Findings of Fact, which start on page 4; an analysis of the violations, which starts on page 13; and 

an order for the remedies, which starts on page 16. The appeal language is on page 18. 
2 

Procedural Background 

The 2012 AO alleges that Mr. Colaceci violated conditions of his solid waste management 

facility certification, the Vermont Solid Waste Management Rules (VSWMR), and the Vermont 

Hazardous Waste Management Rules (VHWMR). In the 2012 AO, ANR assessed a $54,000 

penalty and ordered Mr. Colaceci to undertake various measures to bring his facility into 

compliance. Mr. Colaceci timely requested a hearing on the 2012 AO. 

Around the time the 2012 AO was served, Mr. Colaceci was undergoing Chapter 13 

bankruptcy proceedings in the U.S. Bankruptcy Court for the District of Vermont. Ordinarily, 

debtors in bankruptcy enjoy an automatic stay of all litigation, but certain “police and regulatory” 

actions are not subject to the automatic stay. See 11 U.S.C. § 362(a), (b). ANR therefore sought 

an order from the U.S. Bankruptcy Court that the 2012 AO could continue under this “police and 

regulatory” exception. See 11 U.S.C. §362(b). On February 18, 2014, the Bankruptcy Court 

authorized ANR to proceed with the 2012 AO, but “only insofar as it may order Debtors to take 

remedial actions or to come into compliance with applicable provisions.” In re Colaceci, No. 12-

10382cab, at 1 (Bankr. D. Vt. Feb. 18, 2014). The Bankruptcy Court specifically ordered that “the 

Agency of Natural Resources is enjoined from seeking to enforce or reduce to judgment any civil 

penalties sought in connection with the [2012 AO].” Id. 

Meanwhile, Mr. Colaceci’s solid waste facility certification—the permit that authorizes 

him to accept used tires as solid waste, which ANR alleged he violated in the 2012 AO—was set 

to expire in September 30, 2014. One of the conditions of his certification was that Mr. Colaceci 

file a renewal application by April 2014. Mr. Colaceci failed to do so. He eventually submitted a 

renewal application on September 30, 2014, which ANR received on October 3, 2014. ANR 

deemed the application to be “administratively incomplete” and did not grant the renewal. 

On October 13, 2014, ANR sent Mr. Colaceci a notice of alleged violation for continuing 

to operate his facility without a certification. Mr. Colaceci did not respond. In November of 2014, 

ANR sent Mr. Colaceci a letter stating that it intended to draw upon an $8,000 escrow account 

that Mr. Colaceci established in 2009 as part of his original certification, and which was dedicated 

to fund closure of the facility. In January of 2015, an ANR inspector toured Mr. Colaceci’s 

property, accompanied by Mr. Colaceci, to observe his facility. In February, ANR drafted its 

second AO, alleging that Mr. Colaceci was continuing to operate his facility without a permit, and 

posted it for public comment, as required by 10 V.S.A. § 8020. On February 25, 2015, ANR moved 
3 

to continue the merits hearing on the 2012 AO, which had been set for March 11, on the basis 

that it was planning to serve Mr. Colaceci with a second AO in the near future, and that this 

second AO could affect the relief it sought under the 2012 AO. ANR sent copies of that motion 

to Mr. Colaceci. The Court granted the motion, noting ANR’s rationale, and sent copies of the 

order to Mr. Colaceci. 

ANR finally served the second AO on Mr. Colaceci on March 17, 2015 (the 2015 AO). ANR 

filed a sheriff’s return of service with the Court showing that the Lamoille County Sherriff’s Office 

served this AO on Mr. Colaceci on March 17, 2015. In the 2015 AO, ANR alleges that Mr. Colaceci 

continued to operate his facility after his solid waste facility certification expired on September 

30, 2015. It orders Mr. Colaceci to “[i]mmediately cease operation of the facility” and to 

“implement the facility closure plan.” It also orders Mr. Colaceci to provide ANR with the account 

number for the $8,000 escrow account at Chittenden Bank dedicated to closing his facility. Mr. 

Colaceci did not request a hearing on the second AO within fifteen days as required by statute. 

See 10 V.S.A. § 8012(c). The Court issued a judgment order on April 16, 2015, at which point the 

2015 AO became a final judicial order. See 10 V.S.A. §§ 8008(d), 8012(c). 

On May 15, 2015, the Court held a one-day merits hearing on the 2012 AO. Mr. Colaceci 

and ANR participated in the hearing. 

On May 26, 2015, Mr. Colaceci filed a “motion to reopen” and a request for a hearing on 

the 2015 AO. Mr. Colaceci also moved to dismiss the 2015 AO on grounds that ANR unfairly 

refused to process his certification renewal application, and that closing his facility would violate 

his Chapter 13 plan. Finally, Mr. Colaceci moved to dismiss both AOs on grounds of selective 

prosecution. 

Concerned that the remedy ANR sought under the 2015 AO might go beyond the scope 

of the “remedial actions” authorized by the Bankruptcy Court, the Court held a hearing on Mr. 

Colaceci’s motion, with particular attention to Mr. Colaceci’s arguments that the 2015 AO would 

violate his Chapter 13 plan.2

 At the conclusion of the hearing, the Court ordered ANR to seek 

authorization to pursue the 2015 AO from the Bankruptcy Court. 

 

2

 The Court did not hold a full hearing on Mr. Colaceci’s Rule 60(b) motion because he did not request one. 

See Altman v. Altman, 169 Vt. 562, 586 (1999) (“We have held that the court deciding a Rule 60(b) motion should 

hold a hearing where there has been a dismissal in the nature of a default or nonsuit. Nevertheless, our rules plainly 

require that a moving party who wishes to present evidence must submit a request for a hearing with the motion or 

within five days thereafter, together with a statement of the evidence offered.” (citations omitted)). Mr. Colaceci 
4 

On April 13, 2016, the U.S. Bankruptcy Court issued an order authorizing ANR to seek 

closure of Mr. Colaceci’s facility. In re Colaceci, No. 12-10382cab, at 1 (Bankr. D. Vt. Apr. 13, 

2016). It also authorized ANR to access the $8,000 escrow account at Chittenden Bank dedicated 

to closure of Mr. Colaceci’s facility. The Bankruptcy Court’s order continued to enjoin ANR from 

pursuing monetary penalties. Id. 

Because the Bankruptcy Court’s order clarifying the scope of the “remedial actions” ANR 

is allowed to take alleviates the Court’s concerns regarding Mr. Colaceci’s Chapter 13 plan, Mr. 

Colaceci’s motions to reopen the 2015 AO appeal, as well as the merits of the 2012 AO appeal 

are now ripe for review. 

Based on the evidence presented at the May 15, 2015 hearing, the Court renders the 

following findings of fact and conclusion of law. 

Findings of Fact 

1. Mr. Colaceci, the Respondent, operates a tire collection, storage, and transfer business 

on property located on Route 15 on the Wolcott/Hardwick Town line (the Property). 

2. The Property includes a garage building. 

3. On November 5, 2009, ANR issued Solid Waste Facility Certification #CA961 (the 

Certification) to the Respondent, authorizing operation of a transfer station on the Property for 

the proper management of used tires. 

4. The Certification expired on September 30, 2014. 

5. On six occasions, starting on August 9, 2010 and ending on October 4, 2011, personnel 

from ANR’s Waste Management Division inspected the Property. During the inspections, ANR 

observed the following: 

a. Tire storage bunkers had not been constructed as required by Certification 

Condition #2. Piles of tires were observed in piles out in the open. 

b. The Facility Management Plan was not readily available on-site as required by 

Certification Condition #13. 

 

requested a hearing on the underlying 2015 AO, but he did not request a hearing on his motion, or offer a specific 

statement of evidence related to the motion. See Respondent’s Request for a Hearing at 1, filed May 26, 2015. 
5 

c. Mr. Colaceci failed to timely submit quarterly reports or franchise tax returns for 

the fourth quarter of 2009, all four quarters of 2010, and the first quarter of 2011 

as required by Certification Conditions #20–21. 

d. ANR personnel observed as many as 30 55-gallon drums containing used oil. The 

drums were not labeled with the words “used oil” as required by VHWMR § 7-

806(b)(5), 16-3 Vt. Code R. § 202:7-806(b)(5) (WL) (2016); were stored on bare 

ground and not on an impervious surface as required by VHWMR § 7-806(b)(6);

and were stored outdoors and not within a structure that sheds rain and snow as 

required by VHWMR § 7-806(b)(7). 

e. On a site visit on April 4, 2011, ANR personnel observed one of the drums leaning 

at an angle on uneven ground or snow, creating a risk of releasing its contents in 

violation of VHWMR § 7-806(b)(2), 16-3 Vt. Code R. § 202:7-806(b)(2) (WL) (2016). 

f. On a site visit on June 28, 2011, ANR personnel observed one drum containing 

used oil in the storage shed area that had severe rust and dents, and was not in 

good condition as required under VHWMR § 7-806(b)(4), 16-3 Vt. Code R. § 202:7-

806(b)(4) (WL) (2016). 

g. Pursuant to VHWMR § 7-812(c)(1), 16-3 Vt. Code R. § 202:7-812(c)(1) (WL) (2016), 

Mr. Colaceci did not maintain records documenting that used oil being used as 

heating fuel had been evaluated to determine whether it met state specifications 

identified in the VHWMR. 

h. Mr. Colaceci could not provide records documenting the origin of the used oil, the 

amount accepted, and the specification testing results as required under VHWMR 

§ 7-812(a)(2)(D), 16-3 Vt. Code R. § 202:7-812(a)(2)(D) (WL) (2016). 

i. On a site visit on April 4, 2011, ANR personnel observed a tire pile containing 

several thousand tires located behind the garage building and immediately 

adjacent to a wooded area. There were no fire lanes or setbacks between the tires 

and the woods. The general performance standards for solid waste facilities are 

described in VSWMR § 6-1203(a), 16-3 Vt. Code R. § 200:12-6-1203(a) (WL) (2016). 

j. On a site visit on April 4, 2011, ANR personnel observed bags of garbage piled in 

an open truck instead of in a certified facility as required under VSWMR § 3-6-

302(d), 16-3 Vt. Code R. § 200:3-6-302(d) (WL) (2016). 
6 

k. On a site visit on April 18, 2011, oil-stained soils and sheens were observed in areas 

where drums were being stored in the front and rear of the garage building, 

indicating a hazardous materials release, which is regulated under VHWMR § 7-

302(c), 16-3 Vt. Code R. § 202:7-302(c) (WL) (2016). 

l. On a site visit on June 28, 2011, Agency personnel observed approximately 27 junk 

motor vehicles throughout the Property. Under 24 V.S.A. § 2242(a), salvage yards 

are required to obtain a Certificate of Registration issued by the ANR Secretary. 

m. On a site visit on October 4, 2011, ANR personnel observed that corrective action 

to address the previous releases of hazardous material had not been initiated as 

required under VHWMR § 7-105(a)(1), 16-3 Vt. Code R. § 202:7-105(a)(1) (WL) 

(2016). 

6. During the more than year-long enforcement effort by ANR in 2010 and 2011, Mr. 

Colaceci corrected some of the violations, including cleaning up the garbage, organizing the piles 

of used tires, submitting some quarterly reports and franchise tax returns, and properly labeling 

and storing some of the drums containing used oil. 

7. After the initial inspections in 2010 and 2011, ANR issued the Respondent two Notices of 

Alleged Violation with instructions to address the observed violations. After subsequent 

inspections, ANR followed up with letters outlining outstanding issues and providing instructions 

on how to achieve compliance. 

8. Mr. Colaceci’s Solid Waste Facility Certification #CA961 expired on September 30, 2014. 

9. On January 12, 2015, an ANR Environmental Analyst visited the facility and observed the 

following: 

a. The facility was still in operation and accepting used tires. 

b. A large amount of tires were deposited throughout the Property. 

c. At least two of eight trailers on the Property contained used tires, and Mr. Colaceci 

represented that the other six also contained used tires. 

Conclusions of Law 

I. Request to Reopen, Request for a Hearing, and Motion to Dismiss All Enforcement 

Actions 

Mr. Colaceci has moved to reopen the 2015 AO and has requested a hearing. Under Rule 

4(a)(2) of the Vermont Rules of Environmental Court Proceedings, which governs enforcement 
7 

matters before the Court, the Vermont Rules of Civil Procedure and the Vermont Rules of 

Appellate procedure apply to enforcement matters unless another procedure is expressly 

provided in the V.R.E.C.P. There is no explicit procedure in V.R.E.C.P. 4 for requesting a hearing 

on an AO that has already become a final judicial order. When a respondent fails to request a 

hearing on an AO, the resulting judgment is akin to a default judgment; as such, Rule 55 

(governing relief from default judgments) is applicable to a request to reopen an administrative 

order in which no hearing has been held.3

 

Rule 55(c) provides that “the court may set [a default judgment] aside in accordance with 

Rule 60(b) and not otherwise.” Under Rule 60(b), the court may relieve a party from the effects 

of judgment in the case of: (1) excusable neglect; (2) newly discovered evidence; (3) fraud; (4) 

void judgment; (5) discharged judgment; or (6) “any other reason justifying relief from the 

operation of the judgment.” In the context of a default judgment, courts should be particularly 

lenient in applying this standard because of the law’s strong preference for decisions on the 

merits. Ying Ji v. Heide, 2013 VT 81, ¶ 6, 194 Vt. 546. 

Interpreted generously, Mr. Colaceci’s motion invokes prongs 1, 4, and 6. He argues that 

the judgment under the 2015 AO is void because of improper service of process of the AO, stating 

that he “ha[s] no present recollection of being served any administrative order.”4 Respondent’s 

Resp. to Secretary’s Mem. at 1, filed June 15, 2015. He argues excusable neglect, offering that 

“perhaps some documents fell through the cracks” because his wife primarily handles paperwork 

for the household, and she has been sick with cancer for some time. Id. Finally, he invokes the 

sixth catch-all prong, arguing that it would be unjust to enforce the judgment because closing his 

facility would harm his creditors. Finally, Mr. Colaceci’s motion also attacks the merits of the 

2015 AO, arguing that ANR deliberately refused to process his renewal application; that ANR is 

 

3

 Unlike matters that come before this Court under 10 V.S.A. § 8504, a hearing on an administrative order 

is not an “appeal” of a decision by ANR so much as it is a first-impression hearing on the order. Compare 10 V.S.A. 

§ 8504 (titled “Appeals to the Environmental Division”) with 10 V.S.A. § 8012 (titled “Request for a Hearing”). The 

Court generally applies Vermont Rule of Appellate Procedure 4(d) to late appeals under 10 V.S.A. § 8504. See, e.g., 

In re Davis WW/WS Permit, No. 167-11-14 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Feb. 18, 2015). Rule 4(d) would 

preclude Mr. Colaceci’s request here, however, because a party may only move to extend an appeals deadline for 

30 days after the original deadline. V.R.C.P. 4(d). Rule 60(b), however, allows a party to move for relief from 

judgment for one year after the judgment is entered. 

4

 Mr. Colaceci adds that “[t]he only documents served on me were recently by the Lamoille County Sheriff’s 

Department.” Respondent’s Response at 1, filed June 15, 2015. It is unclear what documents Mr. Colaceci is 

referring to by this comment, but it is entirely possible that it was actually the 2015 AO, which the Lamoille County 

Sherriff’s Deputy attests to having served in March 2015. 
8 

selectively prosecuting him; that ANR improperly interfered with a business contract; that he has 

not, in fact, accepted used tires since his certification expired; that he does not need a 

certification to sell used tires to his auto repair customers; and that all tires on his facility are in 

trailers, which do not require solid waste facility certification. 

a. Rule 60(b)(4): Voidness of the Judgment 

We turn first to Mr. Colaceci’s assertion that he was not served with the 2015 AO. Where 

there has been no proper service of process against a defendant and the defendant has not 

waived service of process, there is no personal jurisdiction over the defendant, and a default 

judgment against the defendant is void. See 10A Wright, Miller & Kane, Federal Practice and 

Procedure: Civil 3d § 2695; id. § 2862. Where there has been no service of process, a defendant 

may therefore move for relief from a default judgment under Rule 60(b)(4) on grounds that the 

judgment is void. 10A Wright, Miller & Kane, supra § 2862; see also Blodgett Supply Co. v. 

Lowery, No. 2005-141, 2005 WL 6152378, at 1 (Vt. 2005) (mem.). 

A sheriff’s return of service is prima facie evidence of proper service if it identifies the 

address of service and the person served. See Blodgett, 2005 WL 6152378, at *1 (citing Taft v. 

Donellan Jerome, Inc., 407 F.2d 807, 808–09 (7th Cir. 1969)). A defendant’s sworn denial of 

receipt of service will overcome the presumption created by a sheriff’s return of service, but only 

if the defendant swears to “specific facts to rebut the statements in the process server’s 

affidavits.” Old Republic Ins. Co. v. Pac. Fin. Servs. of Am., Inc., 301 F.3d 54, 57 (2d Cir. 2002) 

(quoting Simonds v. Grobman, 277 A.D.2d 369, 369 (N.Y. App. Div. 2000)). Furthermore, the 

Vermont Supreme Court has held that lack of technical service of process in a suit does not render 

a default judgment void where a defendant has actual notice of a pending suit. Myers v. Brown, 

143 Vt. 159, 167 (1983). 

Here, ANR submitted a sheriff’s return of process to the court when it filed its 2015 AO. 

That return of service states that the Lamoille County Deputy Sheriff served Mr. Colaceci in hand 

at 7013 Route 15 in Wolcott, Vermont. This is prima facie evidence of proper service. Mr. 

Colaceci equivocally denies service, stating that he has “no present recollection of being served.” 

Respondent’s Resp. at 1, filed June 15, 2015. He offers no “specific facts” to rebut the sheriff’s 

return of service, however, and thus fails to rebut the presumption that service was proper. See 

Old Republic, 301 F.3d at 57. 
9 

Furthermore, the 2015 AO should not have come as a surprise to Mr. Colaceci. In the fall 

and winter of 2014 and 2015, Mr. Colaceci had five distinct indications that a second AO was 

imminent: in October 2014, ANR sent him a notice of alleged violation (which it has no obligation 

to do, see 10 V.S.A. § 8006(a)); in November, ANR sent him a letter stating that it was drawing on 

his facility-closure escrow account; in February, it moved to continue the hearing on the 2012 

AO, explaining that it was planning to serve a second AO on Mr. Colaceci, and ANR sent a copy of 

that motion to Mr. Colaceci; and, finally, the Court issued an entry order granted ANR’s motion 

to continue and noting that a second AO was imminent, and mailed a copy of that entry order to 

Mr. Colaceci. At the very least, Mr. Colaceci had constructive notice that a second AO was 

imminent. In this context, Mr. Colaceci’s equivocal denial of service is not sufficient to rebut the 

sheriff’s return of service or the layers of constructive notice. Therefore, we conclude that the 

judgment is not void for lack of service. 

b. Excusable Neglect 

Mr. Colaceci argues that the 2015 AO may have slipped through the cracks due to his 

wife’s and his son’s illness. When a party seeks relief from a default judgment on grounds of 

excusable neglect, the court must consider whether neglect is excusable considering: (1) the 

degree of defendant’s culpability (2) the prejudice to the non-defaulting party caused by the 

defaulting party’s delay; (3) whether the defaulting party raises material issues of fact or 

meritorious defenses; and (4) the significance of the interests at stake. LaFrance Architect v. 

Point Five Development S. Burlington, LLC, 2013 VT 115, ¶ 15, 195 Vt. 543. 

As to the first factor, Mr. Colaceci is culpable for his failure to timely respond to the 2015 

AO. As discussed above, he had ample notice throughout the fall and winter of 2014 and 2015 

that a second AO was forthcoming. Not only did Mr. Colaceci fail to timely request a hearing on 

the 2015 AO, but he failed to promptly move for relief—his 60(b) motion comes seventy days 

after he was first served with the AO and fifty-five days after the deadline to request a hearing 

on the 2015 AO. While the Court is sympathetic to Mr. Colaceci’s wife’s illness and to Mr. 

Colaceci’s financial difficulties, these difficulties do not absolve him of his responsibility to 

respond to legal matters in a timely fashion, especially when he has ample warning of the need 

to respond. 

As to the second factor, ANR has suffered unusual prejudice due to Mr. Colaceci’s delay 

in this matter. ANR specifically moved to continue the merits hearing on the 2012 AO because 
10 

the pending 2015 AO could affect the relief sought in the first enforcement action. Had Mr. 

Colaceci timely responded to the 2015 AO, the two AOs could have been coordinated and 

considered in a single trial. If the Court were to grant Mr. Colaceci’s request for a hearing on the 

2015 AO, ANR would be forced to undergo significant effort and expense that could have been 

avoided by timely response. 

As to the third factor (regarding meritorious claims or defenses), in his motion, Mr. 

Colaceci asserts that ANR unfairly refused to process his renewal application, that ANR is 

selectively prosecuting him, and that an ANR agent interfered with a lucrative business contract 

and caused his bankruptcy. Reading his motion generously, he also challenges the substance of 

the alleged violation and invokes two exceptions to the Solid Waste Management Rules’ 

certification requirement—the recycling exception and the transport exception. See VSWMR 

§§ 6-301(b)(4), (7). 

ANR’s decision not to renew Mr. Colaceci’s solid waste facility certification occurred on 

October 3, 2014. This decision was appealable under 10 V.S.A. § 8504. Mr. Colaceci did not 

appeal the decision. It is therefore final and binding, and cannot be challenged here. Mr. 

Colaceci’s motion also fails to make out a prima facie case of selective prosecution. While he 

does allege that others similarly situated have not been prosecuted for conduct similar to his, he 

has not shown or alleged impermissible motives on the part of ANR (such as race, religion, or his 

exercise of constitutional rights), a necessary element of a selective prosecution defense. See 

State v. Zaccaro, 154 Vt. 83, 92 (1990). And, while Mr. Colaceci’s allegations that an ANR agent 

interfered with a business contract might state a valid tort claim, that claim is not a defense in an 

enforcement action. Finally, though Mr. Colaceci implicitly invokes two valid exceptions to the 

permit requirement, he offers no facts or legal arguments as to why he qualifies for these 

exceptions.5 

Turning to the fourth factor, the Court does register some concern about the weight of 

the interests at stake. The AO seeks a broad remedy—it orders Mr. Colaceci to “cease operation 

 

5

 The recycling exception excepts “[r]ecycling facilities which accept, aggregate, store and/or process less 

than 50 tons of recyclable materials per year. VSWMR § 6-301(b)(4). Mr. Colaceci has not alleged that he meets 

this tonnage requirement or that he is a “recycling facility.” The transport exception exempts “Mobile Sold Waste 

Collection Operations” if the vehicle is registered and inspected, the vehicles used prevent release of solid wastes, 

and the solid wastes collected are delivered to a solid waste management facility within 48 hours of collection. 

V.S.W.M.R. § 6-301(b)(7). Mr. Colaceci appears to acknowledge that his tire trailers lack proper registration. In any 

evident these trailers appear to have been on his Property for a long period of time—they do not deliver tires to a 

certified facility within 48 hours. 
11 

of his facility.” This penalty is serious. Furthermore, the violation alleged in the 2015 AO is that

Mr. Colaceci is continuing to operate his facility despite his expired solid waste facility 

certification. It does not allege any other substantive violation of the Vermont Solid Waste 

Management Rules or Vermont Hazardous Waste Management Rules. Thus, this second AO 

essentially arises out of ANR’s own decision to deny Mr. Colaceci’s renewal application, and the 

AO itself is silent as to the reasons for denying that application. 

While the Court registers some concern that it does not know the reasons for ANR’s denial 

of Mr. Colaceci’s September 2014 renewal application, we note that Mr. Colaceci could have 

avoided this entire situation had he timely filed a renewal application for his solid waste facility 

certification in April of 2014. He ultimately filed a renewal application on the very day his 

certification was set to expire. This allowed no cushion for addressing deficiencies in his facility 

or his application. Any imbalance between the severity of the violation alleged in the 2015 AO 

(failure to recertify) and the remedy sought (closure) is therefore partly due to Mr. Colaceci’s 

own neglect. 

The Court has been sympathetic to Mr. Colaceci’s family’s financial and medical 

difficulties. But, even with these difficulties, Mr. Colaceci’s failure to promptly respond to the 

2015 AO is not excusable given the degree of warning leading up to the 2015 AO. Given that 

three of the four factors weigh against Mr. Colaceci, and that the fourth weighs but little in his 

favor, the Court concludes that Mr. Colaceci’s neglect is not excusable, even in the more lenient 

and equitable context of a default judgment. The Court therefore rejects his motion as to Rule 

60(b)(1). 

c. “Any other reason” 

Rule 60(b) contains a final “catchall” provision, allowing a court to vacate a judgment for 

“any other reason” it deems just. V.R.C.P. 60(b). The “other reasons” Mr. Colaceci identifies are 

that he is “judgment-proof” and that closing his business will harm his creditors in his Chapter 13 

proceedings. 

The Bankruptcy Court has enjoined ANR from seeking monetary penalties, and ANR seeks 

none in the 2015 AO. The fact that Mr. Colaceci is “judgment-proof” is therefore not relevant to 

this enforcement action. Mr. Colaceci claims that Chittenden Bank has taken the escrow account 

established for the ultimate closure of his facility and that he therefore has no funds to comply 

with the closure order. Respondent’s Mot. to Reopen at 2. But this does not excuse him from 
12 

the responsibility of providing ANR with the account number for his escrow account, as required 

in the 2015 AO, so that ANR can confirm or deny this claim. Furthermore, the Bankruptcy Court 

has authorized ANR to pursue enforcement of the 2015 AO, even though it seeks to close the 

facility and claim the $8,000 escrow account. Mr. Colaceci’s proffered reasons do not entitle him 

to relief under Rule 60(b)(6). 

In conclusion, the judgment in the 2015 AO is not void for lack of service of process, Mr. 

Colaceci’s neglect in responding to the 2015 AO is not excusable, and there are no other reasons 

to justify relieving him from judgment under the 2015 AO. The Court therefore DENIES Mr. 

Colaceci’s request to reopen and request for a hearing. Because the 2015 AO is a final and binding 

judgment that the Court will not revisit, the Court also DENIES Mr. Colaceci’s motion to dismiss 

the 2015 AO. The 2015 AO stands as a valid judicial order. 

II. Merits of the 2012 AO 

ANR issued the 2012 AO on May 15, 2012, ordering that Mr. Colaceci pay a $54,000 

penalty and to take the following steps to bring his facility into compliance: (1) cease burning 

used oil; (2) sample and test his stored used fuel oil; (3) move all used tire piles at least 10 feet 

from his property line; (4) build tire bunkers for his used tires; (5) post a copy of his facility 

management plan on-site; (6) refrain from storing solid waste on his Property without a 

certification; (7) submit quarterly reports and franchise tax returns; (8) label used oil containers 

and store them on impervious surfaces; (9) hire an environmental consultant to develop a work 

plan for investigating and remediating contaminated areas, and complete the necessary 

remediation work; and (10) remove junk vehicles from the Property. 

The Court ultimately held a full merits hearing on the 2012 AO on May 15, 2015, and the 

merits of that AO are now before the Court. Given the Court’s decision not to reopen the 2015 

AO which orders Mr. Colaceci to close his facility in accordance with a facility closure plan, 

however, some of the remedies sought in the 2012 AO are now unnecessary. The 2012 AO also 

seeks a monetary penalty, which, pursuant to the Bankruptcy Court’s order, the Court is not 

authorized to impose. Other remedies sought in the 2012 AO are necessary to ensure the former 

solid waste facility does not continue to release hazardous waste materials into the environment. 

We turn now to the Respondent’s violations, and the remedies he will be required to perform. 
13 

a. Violations

1. Failure to Construct Tire Storage Bunkers 

ANR alleges that the Respondent violated Certification Condition #2 by failing to construct 

tire storage bunkers; tires were instead stored in piles on the open ground. Administrative Order 

at 2, filed April 5, 2012). Despite two Notices of Alleged Violation and follow-up correspondence 

from ANR, the Respondent did not build the tire storage bunkers as of the last follow-up 

inspection of the Property on June 28, 2011. Based on the testimony at trial, and the 

photographic evidence, we conclude that Mr. Colacaci violated Condition #2 of his Certification. 

2. Failure to Maintain a Copy of the Facility Management Plan On-Site 

ANR alleges that the Respondent violated Certification Condition #13 during a site 

inspection on August 9, 2010 because the facility personnel were unable to locate a Facility 

Management Plan. Certification Condition #13 requires Respondent to have a copy on-site in a 

readily accessible location. Based on the evidence at trial we conclude that Mr. Colaceci violated 

this condition of his Certification. 

3. Failure to Submit Quarterly Reports and Franchise Tax Returns 

ANR alleges that the Respondent did not timely submit quarterly reports for the fourth 

quarter of 2009, all four quarters of 2010, and the first quarter of 2011, in violation of 

Certification Conditions #20 and 21. By the time the AO was issued in April 2012, Mr. Colaceci 

had submitted quarterly reports and franchise tax returns to ANR for 2009 and 2010, but not for 

2011. We conclude that Mr. Colaceci violated Conditions #20 and 21 of his Certification. 

4. Failure to Properly Label and Store Drums Containing Used Oil 

ANR alleges that the Respondent violated VHWMR § 7-806(b)(5)–(7) by not marking 55-

gallon drums containing used oil with the label “used oil,” and, in one case, mislabeling the drum; 

storing them on bare ground and not on an impervious surface; and storing them outside and 

not within a structure that sheds rain and snow. During the August 9, 2010 inspection, ANR 

personnel observed as many as 30 unlabeled and improperly stored 55-gallon drums on the 

Property. ANR reported fewer unlabeled and improperly stored drums on subsequent 
14 

inspections. Based on the evidence at trial, including photographic exhibits provided by ANR, we 

conclude that Mr. Colaceci violated VHWMR § 7-806(b)(5)–(7). 

5. Failure to Maintain a 55-Gallon Drum Containing Used Oil in Good Condition 

ANR alleges the Respondent violated VHWMR § 7-806(b)(4) because on a June 28, 2011 

site visit, ANR personnel observed that one of the drums containing used oil was in poor 

condition, with severe dents and rust. Based on the evidence at trial, including a photographic 

exhibit of a rusting, dented drum labeled “waste oil,” we conclude that the Respondent violated 

VHWMR § 7-806(b)(4), which requires that “[a] container holding used oil must be in good 

condition (no severe rusting, apparent structural defects or deterioration).” 

6. Failure to Evaluate the Used Oil to Determine Whether It Met Specifications 

ANR alleges that the Respondent violated VHWMR § 7-812(c)(1) by failing to provide 

records to show the used oil had been evaluated to determine whether the contents met 

specifications identified in the VHWMR prior to its use as heating oil. Mr. Colaceci did not provide 

records showing that the used oil and other petroleum-based products on the Property had been 

sampled during any of the six site inspections performed by ANR. Based on the evidence 

provided at trial, we conclude that the Respondent violated VHWMR § 7-812(c)(1). 

7. Failure to Maintain Records of Where the Oil Originated 

ANR alleges the Respondent violated VHWMR § 7-812(a)(2)(D) by not maintaining records 

to document the origin of the used oil. Section 7-812(a)(2)(D) requires the burner to retain 

records for three years documenting the amount of used oil fuel accepted from an off-site facility 

not owned or operated by the burner; the name, address, and telephone number of that off-site 

facility; and the specification testing results for the used oil. Because Mr. Colaceci did not 

produce these records, we conclude that the Respondent violated VHWMR § 7-812(a)(2)(D). 

8. Storing a 55-Gallon Drum in a Manner that Could Cause a Release 

ANR alleges that the Respondent violated VHWMR § 7-806(b)(2) by placing a 55-gallon 

drum in such a way that it leaned at an angle on uneven ground or snow. The regulation states 

that a “container holding used oil must not be opened, handled or stored in a manner which may 

rupture the container or cause a release.” Based on the evidence that ANR provided at trial from 

the April 4, 2011 inspection of the Property, including photographic exhibits of an oil drum 
15 

leaning precariously in the snow, we conclude that the Respondent violated VHWMR § 7-

806(b)(2). 

9. Releasing Hazardous Materials to the Environment 

ANR alleges that the Respondent released hazardous materials to the environment in 

violation of VHWMR § 7-302(c). During the April 18, 2011 site inspection, ANR personnel 

observed oil-stained soils and oily sheens on water puddles in the areas where drums were 

improperly stored in the front and rear of the garage building. Based on evidence at trial, 

including photographic exhibits, we conclude that Mr. Colaceci violated VHWMR § 7-302(c), 

which prohibits “release of hazardous material into the surface or groundwater, or onto the 

land.” 

10. Failure to Take Corrective Action to Address the Releases 

ANR alleges that more than five months after the oil-stained soil and sheens were 

observed, the Respondent failed to take corrective actions to address the observed releases of 

hazardous materials in violation of VHWMR § 7-105(a)(1). During the three site inspections 

subsequent to observing the releases on April 18, 2011—on May 9, June 28, and October 4, 

2011—ANR found no corrective actions had been performed. Based on the evidence at trial, we 

conclude that the Respondent violated VHWMR § 7-105(a)(1), which requires the “person in 

control of such waste or material” to, in part, take clean-up actions as required by federal, state, 

or local officials “so that the discharged waste or released material and related contaminated 

materials no longer present a hazard to human health or the environment.” 

11. Creating a Fire Hazard and Undue Threat to Public Health and Safety, and the 

Environment 

ANR alleges the Respondent violated VSWMR § 6-1203(a) by maintaining a tire pile of 

several thousand tires adjacent to a wooded area. Section 6-1203(a) requires solid waste 

facilities to be designed and operated in such a way as “to preclude the creation of . . . undue 

threats to public health and safety or to the environment.” On April 4, 2011, ANR personnel 

observed the pile located behind the garage building on the Property. There were no fire lanes 

or setbacks separating the pile from the wooded area. Based on the evidence at trial, including 

photographic exhibits, we conclude that Mr. Colaceci created a fire hazard that unduly 

threatened the public health and safety, and the environment in violation of VSWMR § 6-1203(a). 
16 

12. Storing Solid Waste Outside a Certified Facility 

ANR alleges the Respondent violated VSWMR § 6-302(d). Bags of raw garbage were piled 

in an open truck, with some loose waste on the ground around the truck. Based on the evidence 

at trial, including photographic exhibits from an April 4, 2011 inspection of the Property, we 

conclude that the Respondent violated VSWMR § 6-302(d), which prohibits “storage or disposal 

of solid waste outside of a certified facility except for the limited exemptions” set forth in the 

rules.6 

13. Operating a Salvage Yard Without Obtaining a Certificate of Registration 

ANR alleges the Respondent was operating a salvage yard without a Certificate of 

Registration from ANR in violation of 24 V.S.A. § 2242(a), which also requires a certificate of 

approval for the location of the salvage yard. On various site inspections in 2011, ANR personnel 

observed unregistered vehicles on the Property. During the June 28, 2011 inspection, ANR 

personnel reported as many as 27 junk motor vehicles were on the Property. Mr. Colaceci had 

not obtained a Certificate of Registration from ANR to operate a salvage yard. Based on the 

evidence presented at trial, including photographic exhibits, we conclude that Mr. Colaceci 

violated 24 V.S.A. § 2242(a). 

b. Order

Based on the enumerated violations and the need to ensure the former solid waste facility 

does not continue to pose a threat to the public health and safety, and the environment, we 

AFFIRM the legal conclusions rendered by the ANR Secretary and detailed in the April 5, 2012 AO 

and do hereby order the following injunctive relief imposed by the ANR Secretary: 

A. No later than seven (7) consecutive calendar days from the date of this Decision and 

corresponding Judgment Order, Respondent shall sample all used fuel oil tanks and 

all drums containing used oil or other unidentified fluids to evaluate if the fuel meets 

the specifications identified in VHWMR § 7-812. Respondent shall submit the 

sampling results to the Agency no later than thirty (30) consecutive calendar days 

from the date of sampling. Respondent shall maintain records for a period of three 

 

6

 The situation observed and documented by ANR does not meet one of the exceptions allowed under 

VSWMR § 6-301(b)-(c), 16-3 Vt. Code R. § 200:3-6-301(b)-(c) (WL) (2016). 
17 

years documenting the amount of used oil fuel burned on-site, and that used fuel oil 

has been evaluated in accordance with VHWMR § 7-812. 

B. Respondent shall comply with the used oil management standards identified in 

VHWMR § 7-806. No later than seven (7) consecutive calendar days from the date of 

this Decision and corresponding Judgment Order, Respondent shall label all used oil 

containers with the words “Used Oil” such that the label or marking is visible. 

Additionally, all containers of used oil shall be stored on an impervious surface and 

within a structure that sheds rain and snow. 

C. No later than seven (7) consecutive calendar days from the date of this Decision and 

corresponding Judgment Order, Respondent shall hire an environmental consultant 

experienced in the investigation and remediation of hazardous waste-contaminated 

sites. 

D. No later than thirty (30) consecutive calendar days from the date of this Decision and 

corresponding Judgment Order, Respondent shall have his consultant submit to the 

ANR, for approval, a work plan for investigating the contaminated areas. 

E. Respondent shall complete the site investigation no later than forty-five (45) 

consecutive calendar days following ANR’s approval of the work plan. Respondent 

shall provide to the ANR a report detailing the findings of the site investigation no 

later than fifteen (15) consecutive calendar days following completion of the site 

investigation. Respondent shall comply with ANR’s directives and timeframes for 

completing corrective action pursuant to 10 V.S.A. § 6615b. 

F. No later than fifteen (15) calendar days from the date of this Decision and 

corresponding Judgment Order, Respondent shall remove all junk vehicles from the 

Property and properly dispose of them at a certified salvage yard. Junk vehicles shall 

be removed intact and shall not be crushed or otherwise dismantled prior to delivery 

to the certified salvage yard. Respondent shall refrain from establishing or operating 

a salvage yard on the Property without a Certificate of Registration issued by ANR 

pursuant to 24 V.S.A. § 2242(a). 

Conclusion 

We DENY Mr. Colaceci’s motion for relief from judgment under Rule 60(b), and decline to 

hold a hearing on the merits of the 2015 AO. The 2015 AO therefore stands as a valid judicial 
18 

order, and Mr. Colaceci must comply with its provisions. Mr. Colaceci must also comply with the 

six remedial directives in the 2012 AO that are described herein. 

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

An Altered Judgment Order accompanies this decision. This concludes the matters before 

the Court. 

Electronically signed on December 06, 2016 at 09:26 AM pursuant to V.R.E.F. 7(d). 

_________________________________________ 

Thomas G. Walsh, Judge 

Superior Court, Environmental Division