STATE OF VERMONT

ENVIRONMENTAL COURT

Agency of Natural Resources, ) Petitioner 1 v. Docket # 222-1 0-02Vtec

John Rogers Respondent

ORDER

The Assurance of Discontinuance signed by the Respondent on October 2, 2002, and filed with the Environmental Court on October 8, 2002, is hereby entered as an order of this Court, pursuant to 10 V.S.A. 8007 (c).

Dated this 11 th day of October, 2002.

Merideth Wright, Environmental Judge

STATE OF VERMONT AGENCY OF NATURAL RESOURCES

ENVIRONMENTAL COURT Docket No.

SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES

Plaint iff

JOHN ROGERS Respondent

VIOLATIONS: i. APCR Secretary. 5-201 - Open

burning

ASSURANCE OF DISCONTINUANCE

Pursuant to the provisions of 10 V.S.A. Section 8007, the Secretary (Secretary) of the Agency of Natural Resources (Agency) and John Rogers (Respondent) hereby enter into this Assurance of Discontinuance (Assurance), and stipulate and agree as follows:

STATEMENT OF FACTS AND DESCRIPTION OF VIOLATIONS 1. In the fall of 200 1 the owner of the subject property, John Kenney, approached Jeff Currier

of the Glover Fire Department about the possibility of the fire department using an old farmhouse located at 1299 Beach Hill Road in Glover, Vermont for a practice burn.

2. The inquiry was passed on to Richard Welch, Glover Fire Chief, who inspected the house and found that asbestos siding and asphalt shingles would need to b e removed prior to the house being burned.

3. These instructions were reported back to Mr. Kenney. 4. In April of 2002 Respondent was hired by John Kenney to take down the old farmhouse.

The agreement called for Respondent to remove unburnable items, such as metal radiators, and take the building down in sections. The remaining material would be burned on the ground and the residue pushed into the old cellar hole and buried.

5. The exact procedure was left up to Respondent.

L 6. On April 5, 2002 Respondent contacted Mark Mudgett, Glover Fire Warden about obtaining a permit to burn the farmhouse.

7. This request was denied because of the material other than clean unpainted wood that would be burned.

8. On April 8, 2002 at approximately 12:30 P.M. Warden Mudgett (Mudgett) received a call that the old farmhouse on Beach Hill Road was burning.

9. Upon arrival, Mudgett found Respondent feeding a fire from a pile of debris which was all that remained of the house.

10. When Mudgett asked why he had burned the house after being told not to, Respondent stated that, "the building [was] tom down and what was [Respondent] supposed to do with it." Respondent went on to say, "being way up here and such a cloudy day pespondent] thought no one would know."

1 1. Mudgett instructed Respondent not to add to the fire. 12. Mudgett then contacted Dave Shepard at the Air Pollution Control Division of the

Department of Environmental Conservation, who advised him to put out the fire. 13. The Glover Fire Department was called out at approximately 2:22 P.M. and returned to the

station at 5:15 P.M. after extinguishing the fire. 14. At 10:27 P.M. the same day, Mudgett received a call from a Mrs. Sparrow reporting that

there was a fire at the subject property. 15. Mudgett and Welch inspected the site and found that the pile of debris, from which

Respondent had been feeding the fire earlier, was now burning. 16. Welch stated that when first observed at 2:22 P.M. earlier that day, the pile of wood debris

was about ten feet high by twenty feet in diameter. It had burned down to about three feet high when the fire department arrived.

17. The Fire Department was called out at approximately 11:12 P.M. and returned to the station at 1 :29 A.M. after putting out the fire.

18. On April 9,2002 Environmental Enforcement Officer (EEO) Tim Blake inspected the site. 19. He observed that the area contained partially burned flooring tile, PVC pipe, painted

wood, roof shingles, asbestos siding, a mattress spring and a charred refrigerator. There were no attempts to remove any items except old wooden beams prior to the start of the fire. An orange excavator was also observed parked nearby, but had no markings to indicate ownership.

I 20. EEO Blake left instructions with Respondent's wife that there be no additional burning of construction debris and all remaining debris at the site be removed to a certified disposal facility.

2 1. On April 24, 2002 Respondent disposed of three loads of construction debris at the Waste USA disposal facility in Newport, Vermont. Two truckloads of scrap metal were taken to Gates Salvage.

22. On May 13, 2002 EEO Blake sent Respondent a Notice of Alleged Violations (NOAV) concerning the subject property.

23. EEO Blake's last inspection of the site showed that all demolition waste had been removed and the area cleaned.

24. By burning debris from the old farmhouse Respondent violated the Air Pollution Control Regulations Section 5-201.

AGREEMENT Based on the foregoing Statement of Facts and Description of Violations, the parties agree as follows: A. For the violations described above, Resp~ndent shall pay a penalty of $1000.00. Payment

shall be by check made payable to the "Treasurer, State of Vermont" and forwarded to: Ms. Becky Buchanan, Administrative Assistant Environmental Enforcement Division Agency of Natural Resources 103 South Main Street, 2 South Waterbury, VT 0567 1-040 1

Payment shall be received no later than thirty (30) consecutive calendar days following the date this Assurance is entered as an Order by signature of the Environmental Court.

B. The State of Vermont and the Agency resenre continuing jurisdiction to ensure future compliance with all statutes, rules, and regulations applicable to the facts and violations set forth hereinabove.

C. Nothing in this Assurance shall be construed as having relieved, modified, or in any manner affected the Respondent's on-going obligation to comply with all other federal, state or local statutes, regulations or directives applicable to the Respondent in the operation of their business.

D. This Assurance shall become effective only after it is signed by all parties and entered as an order of the Environmental Court. When so entered by the Environmental Court, this Assurance shall become a judicial order. In the event that such order is vacated, the Assurance shall be null and void.

E. The Respondent shall not be liable for additional civil or criminal penalties with respect to the specific facts described herein occurring before the effective date of the Assurance, provided that the Respondent fully complies with the agreements set forth above.

F. This Assurance sets forth the complete agreement of the parties, and it may b e altered, amended, or otherwise modified only by subsequent written agreements signed by the parties hereto or their legal representatives and incorporated in an order issued by the Environmental Court. Alleged representations not set forth in this Assurance, whether written or oral, shall not be binding upon any party hereto, and such alleged representations shall b e of no legal force or effect.

G. Any violation of any agreement set forth herein will be deemed to b e a violation of a judicial order, and may result in the imposition of injunctive relief and/or penalties, including penalties set forth in 10 V.S.A. Chapters 201 and/or 21 1.

H. This Assurance is subject to the provisions of 10 V.S.A. Section 8007.

RESPONDENT'S SIGNATURE AND NOTARY PAGE

The provisions set forth in this Assurance of Discontinuance are hereby agreed to and accepted.

Dated at YC r , Vermont, t h i s 2 d a y of f3~4 ,20&.

Signa /JLJ e Address:

STATE OF VERMONT COUNTY OF Or I ~ o n 4 , SS.

At &$$& , Vermont this&L/ day of /%&& . ,XC& the above signatory personally appeared and swore to the truth of the foregoiq. Beiors me,

Term Expires: d-h-d 3

The provisions set forth in this Assurance of Discontinuance are hereby agreed to and accepted.

Dated at Waterbury, Vermont, this Y ' day of ad& , 2 0 0 2 . SECRETARY, AGENCY OF NATUR.9L RESOURCES

n

~hristophe;~ecchia, Commissioner Department of Environmental Consenration