STATE OF VERMONT

ENVIRONMENTAL COURT

Secretary, Vermont Agency of 

Natural Resources, Plaintiff, 

v

Diane Harakaly, Defendant.

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Docket No 234-11-99 Vtec

Decision and Order

On October 27, 1998, the Secretary of the Vermont Agency of Natural Resources (ANR) issued 

an administrative order pursuant to 10 V.S.A. ' 8008 regarding Defendant Diane Harakaly, 

which was served on her on October 28, 1998. The administrative order described as the 

remaining violation that Defendant had failed to install an approved on-site water supply system 

pursuant to Subdivision Permit No. EC-5-2363. The administrative order required Defendant to 

pay a penalty of $1,000 and either to install a drilled well by November 30, 1998 or to submit an 

amendment application requesting approval of an alternative water system prior to November 13, 

1998, and provided for the extension of those deadlines.

Defendant did not request a hearing regarding the administrative order, which became final. On 

November 29, 1999, the Secretary of the Vermont Agency of Natural Resources filed a 

complaint for enforcement of the final administrative order, pursuant to 10 V.S.A. ' 8014(a). 

The summons and complaint was served on Defendant on November 20, 1999. She did not file 

an answer to the complaint. The Secretary moved for default, and a default judgment was entered 

on January 21, 2000, ordering Defendant to pay the penalty and to install an approved water 

supply system within 90 days. This order also gave Defendant the choice of installing a drilled 

well according to the plan referred to in Subdivision Permit No. EC-5-2363, or applying for an 

amendment of that permit for an alternative water system. 

The Secretary had the default order personally served on Defendant on April 27, 2000. 

Defendant did not move to vacate the default order or otherwise respond to the personal service 

of the order. The Secretary petitioned for contempt. At the contempt hearing, Ms. Harakaly 

represented herself; the Secretary of the Agency of Natural Resources is represented by 

Catharine Gjessing, Esq. The parties were given the opportunity to submit written memoranda 

after the hearing. Upon consideration of the evidence and the written memoranda, the Court finds 

and concludes as follows.

Defendant owns property on Codding Hollow Road in Waterville, Vermont, known as Lot 5, 

subject to Subdivision Permit No. EC-5-2363. She and her four children reside in the house on 

that property.

Section 2.1 of Subdivision Permit No. EC-5-2363 provides that the lots in the subdivision A are 

approved for an on-site water supply from individual drilled wells, provided that each well is 
located as shown on the plans and meets or exceeds the isolation distances required by the 

Environmental Protection Rules.@

Defendant has been > improvising= an unacceptable water source for many years. While she states 

she > recognizes= the dangers of this improvisation, she has chosen instead to devote her limited 

financial resources to the care and upbringing of her four children and herself. This is a laudable 

goal and the Court recognizes her success in having a child graduating from college. 

Nevertheless, over the history of this case, Defendant had ample opportunity to contest or 

negotiate the requirements that have been imposed on her. She did not do so, and it is 

unacceptable in our legal system for her to simply ignore administrative and Court orders. On the 

other hand, real inability to comply is a defense to civil contempt.

We find that while Defendant may have a present financial inability to have a drilled well 

installed, she did not come forward with the evidence of her financial situation sufficient for the 

Court to make such a finding. Further, even if she cannot afford to have all the stages of work 

done at once, we find that she is able to comply in part by submitting the amendment application 

given as an alternative in the last order. In addition, she testified about her desire to sell the 

property, and the installation of an approvable water source by the purchaser must be made a 

condition of any such sale, if Defendant has not come into compliance in advance of that event. 

Plaintiff may apply under V.R.C.P. 70 to place any such notice in the land records.

Accordingly, it is hereby ORDERED and ADJUDGED that Defendant is in Contempt of the 

Court= s order, and shall come into compliance by taking one or more of the following alternative 

actions within the following time frames:

Either A. 

1) within 15 days from the date of this order, discuss with and obtain in writing from John 

Klimenok, Jr., Assistant Regional Engineer, the requirements for approval of an request for 

amnesty to install a dug well instead of a drilled well on the property; AND

2) within 30 days from the date of this order, hire a Vermont-registered Professional Engineer or 

Site Technician to conduct a site inspection with Mr. Klimenok to determine the best location on 

the property for a dug well; AND

3) within 60 days from the date of this order install the dug well and have it inspected as required 

by Mr. Klimenok; AND

4) within 75 days from the date of this order, submit an administratively complete request for 

amnesty to Mr. Klimenok for approval of the installation of the dug well in lieu of the drilled 

well.

OR B. 
Within 60 days from the date of this order, install a drilled well as required by Subdivision 

Permit No. EC-5-2363, after first having obtained approval of the location of the drilled well 

from Mr. Klimenok.

OR C.

Within 15 days from the date of this order, apply to the Court for a ruling that Defendant lacks 

the present ability to comply with any of the requested actions. This application will have to be 

supported by a full disclosure of Defendant= s financial resources and situation from which the 

Court may make a determination of ability or inability to comply, with copies supplied to 

Attorney Gjessing. If such an application is made, the Court will promptly schedule a hearing on 

the request, after time for Attorney Gjessing to respond and prepare for the hearing. 

With regard to any of these alternatives, Defendant shall respond promptly to any review 

comments, requests for information or directives from any Agency personnel, or shall promptly 

submit a request in writing to this Court, with a copy to the Attorney Gjessing, for relief from 

having to perform the requested action. The Court will not accept any future unilateral decisions 

by Defendant simply to disregard such requests, directives or orders.

As Defendant mentions in her filing with the Court, Mr. Klimenok from the Agency discussed 

with her after the hearing some alternative options, which may differ from the above order. The 

parties are free to pursue any other alternatives and to submit them for approval as an 

amendment of this order, if they wish to do so. 

Done at Barre, Vermont, this 15th day of June, 2001.

___________________

Merideth Wright 

Environmental Judge