Sec., ANR v. Warburton, AMENDED STIPULATED EMERGENCY ORDER, (E95-003) STATE OF VERMONT JUDICIARY DEPARTMENT ENVIRONMENTAL LAW DIVISION Secretary, } Vermont Agency of Natural Resources, } Plaintiff/Applicant, } } v. } Docket No. E95-003 } George V. Warburton, } Respondent. } AMENDED STIPULATED EMERGENCY ORDER On January 30, 1995, the Court issued an Emergency Order intended to be based on the oral stipulations of the parties at a telephone hearing held that date. The Secretary was represented by Gary Kessler, Esq.; Respondent represented himself. By letter filed February 6, 1995, Attorney Kessler brought to the attention of the Court that the provisions of Paragraph D of the Proposed Amended Emergency Order had been omitted from the Court's order, although they had been agreed to on the record. The Court agrees that those provisions were omitted inadvertently, and hereby issues an amended order including all the agreed provisions. At the telephone hearing the parties stipulated on the record to the facts in the Amended Emergency Order, except for the underlined portions of paragraphs 6 and both paragraphs numbered "8." Based on the stipulation of the parties at the hearing, supported by the application for emergency order and the associated affidavits, the Court hereby orders that: 1. Respondent shall pump the sewage disposal system as often as necessary to prevent the release of effluent. Respondent shall provide to the Enforcement Division of the Agency of Natural Resources the name of the individual or business performing the pumping, and shall provide written proof (which may consist of copies of receipts from the pumping agent) of the pumping to the Enforcement Division on a monthly basis, beginning February 15, 1995 and by the fifteenth of each month thereafter. 2. A violation is defined as the surfacing of effluent or the observation of effluent at the surface of the ground. Respondent shall cause the system to be monitored daily, and shall pay a penalty of $500 per violation, should any occur. The parties expressed their intention on the record that this stipulated penalty apply to instances which could have been prevented by Respondent. 3. On or before June 1, 1995, Respondent shall apply for, obtain and comply with all required Water Supply and Waste Water Disposal Permits from the Division of Wastewater Management at the Agency of Natural Resources. The Agency shall act promptly on any such application. 4. If Respondent fails to obtain the required permits on or before June 1, 1995, he shall cause the rental unit to be vacated on or before June 15, 1995. As soon as the rental unit is vacated, Respondent shall remove the internal plumbing of the rental unit and shall permanently disconnect and seal the associated water supply and sewage disposal system to prevent its further use. Respondent did not stipulate to paragraph E of the proposed Amended Emergency Order, containing a penalty for past violations, and requests a hearing on the merits of any such penalty. However, the parties have agreed that the hearing on the penalty should be scheduled after Respondent's return to Vermont in May, 1995. While the Secretary properly could have sought a penalty through an emergency order, 10 V.S.A. 8009(a)(1) and (a)(3) and 8010(a), the hearing may only be postponed under the statute for an Administrative Order, 10 V.S.A.  8012(c), and not for an Emergency Order. 10 V.S.A.  8009(d). Accordingly, to accommodate the requested postponement of the hearing, the Secretary may issue an Administrative Order under 10 V.S.A.  8008 containing a penalty for the violations alleged in the facts contained in the proposed amended emergency order. When the penalty Administrative Order is issued, Respondent will have an opportunity to request a hearing on that order. Nothing in this order prevents the Secretary from issuing subsequent Administrative Orders pursuant to 10 V.S.A.  8008 with respect to the violations which are the subject of the present Emergency Order. The Secretary may cause a copy of this Order to be filed in the land records of the Town of Dorset, Vermont, to the extent permitted by law, and may serve this Order on Respondent and on the Office of Attorney General. V.R.C.P. 76(d)(2). Respondent has the right to move the Court for a prompt hearing on the merits of this Order. V.R.C.P. 76(e)(3). Such a hearing must be requested by Respondent by filing a written motion to the Court and a copy to the Secretary at the following addresses within five days of the date on which Respondent receives a copy of this Order. Clerk, Environmental Law Division Secretary, Agency of Natural Resources 73 Main Street, Suite 400 c/o Enforcement Division Montpelier, VT 05602 103 South Main Street, One South (802) 828-3192 Waterbury VT 05671-0401 (802) 241-3820 Respondent will receive instructions on requesting a hearing regarding the penalty to be imposed through an Administrative Order when that order is issued; to obtain that hearing Respondent need not request an additional hearing on the merits of the present Emergency Order. The filing of a written motion for a hearing by Respondent does not stay the provisions of this Emergency Order, 10 V.S.A. 8009(d). This Emergency Order is effective immediately on actual notice of it to Respondent. 10 V.S.A. 8009(c). This Emergency Order shall remain in effect until further order of the Court. V.R.C.P. 76(c)(iii). Done at Montpelier, Vermont, this 13th day of February, 1995. ____________________________________ Merideth Wright Environmental Judge