STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No.
SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES, Plaintiff
v.
BRIAN BLAKEMAN AND KYLE BLAKEMAN d/b/a BLAKEMAN'S TOWING AND RECOVERY, Respondents
ADMINISTRATIVE ORDER
Having found that Brian Blakeman and Kyle Blakeman d/b/a Blakeman's Towing and Recovery
(Respondents) have committed violations as defined in 10 V.S.A. §8002(9), the Secretary
(Secretary) of the Agency of Natural Resources (Agency), pursuant to the authority set forth in
10 V.S.A. §8008, hereby issues the following Administrative Order:
VIOLATIONS
1. 24 V.S.A. §2242(a)(2): Operation of a salvage yard without a Certificate of Registration (COR). 2. 24 V.S.A. §2257(a): Failure to screen salvage yard from public view. 3. Land Use Permit (LUP) #3R0897, Condition 1: Failure to maintain a gate on the vertical board fence as required. 4. Hazardous Waste Management Regulations (HWMR) §7-3ll(a)(l): Failure to store lead-acid batteries under cover on an impervious surface. 5. LUP #3R0897, Condition 2 and Natural Resources Board (NRB) Rule 34(A): Failure to obtain a Land Use Permit Amendment prior to a material change to the pe1mitted project. 6. 10 V.S.A. §6616, HWMR §7-302(c) and §7-803(i): Release of hazardous material into surface or groundwater, or onto the land of the state.
1 STATEMENT OF FACTS
1. Respondents own property located at 143 Vermont Route 110 in Tunbridge, Vermont with SPAN #65720710242 (the Tunbridge property). 2. Respondents operate an automobile towing and recovery service, known as Blakeman's Towing and Recovery on the Tunbridge property. TUNBRIDGE PROPERTY 3. On October 8, 2003, the District 3 Environmental Commission issued LUP #3R0897 to John & Pamela Doyle d/b/a JD Gas to install two 30,000-gallon propane storage tanks behind JD Gas shop, in addition to a previously installed 500-gallon fill tank, on the Tunbridge property. 4. On October 8, 2013, personnel with the NRB received an anonymous complaint regarding the operation of a towing business and junkyard on the Tunbridge property. The complainant indicated that oil was being dumped on the property as well. 5. On November 6, 2013, NRB personnel made contact with the Respondents and scheduled a site inspection of the Tunbridge property for that afternoon. 6. Upon arrival at the Tunbridge property, NRB and Agency personnel performed a joint inspection and observed approximately forty (40) junk motor vehicles, as well as multiple trailers, boats, used appliances and other junk located outdoors. 7. Pursuant to 24 V.S.A. §2242(a)(2), a person must hold a Certificate of Registration (COR) issued by the Secretary to operate, establish, or maintain a salvage yard. A COR may only be issued to a salvage yard that holds a Certificate of Approved Location (COAL) issued by the legislative body of the municipality in which the salvage yard is located. 8. Respondents' operation at the Tunbridge property meets the definition of a salvage yard pursuant to 24 V.S.A. §2241(7) and (15). 9. Respondents did not have a COAL from the municipality or a COR from the Secretary to operate a salvage yard on the Tunbridge property. By operating a salvage yard on the Tunbridge property without a COR, the Respondents have violated 24 V.S.A. §2242(a)(2). 10. Pursuant to 24 V.S.A. §2257(a), a salvage yard is required to be screened by a fence or vegetation which effectively screens it from public view, and is required to have a gate which shall be closed after business hours.
2 11. During the inspection, Agency personnel observed that the Respondents had failed to install a gate and effectively screen the salvage yard from public view with a fence or vegetation. By failing to have a gate, fence or vegetation to effectively screen the Tunbridge property salvage yard from public view, the Respondents have violated 24 V.S.A. §2257(a). 12. Condition 1 of LUP #3R0897 states: "1. The project shall be completed, operated and maintained in accordance with: (a) the plans and exhibits on file with the District Environmental Commission and (b) the conditions of this permit." 13. Exhibit #20 (Site Plan) ofLUP #3R0897 depicts a gate on a 10-foot high vertical board fence to the north of the existing building on the Tunbridge Property. 14. During the inspection, NRB personnel observed that the Respondents had failed to maintain a gate on the vertical board fence. By failing to maintain a gate on the vertical board fence as required on the Site Plan, the Respondents have violated LUP #3R0897, Condition 1. 15. Pursuant to HWMR §7-311(a), generators must accumulate and store hazardous waste upon an impervious surface within a structure that sheds rain and snow. 16. During the inspection, Agency personnel observed dozens of used car batteries stored outside on a non,impervious surface without cover. By storing used car batteries on a non-impervious surface without cover, the Respondents have violated HWMR §7-31 l(a). 17. Condition 2 ofLUP #3R0897states: "2. No changes shall be made in the design or use of this project without the written approval of the District Coordinator or the District Environmental Commission, whichever is appropriate under the Environmental Board Rules." 18. NRB personnel interviewed the Respondents, who confirmed that a towing and auto salvage business was being operated on the Tunbridge property. 19. Respondents operation of a towing and auto salvage business on the Tunbridge property is a material change to a permitted development requiring a permit amendment under NRB Rule 34(A). 20. By failing to obtain an amendment to the existing LUP prior to a material change to the permitted project, the Respondents have violated LUP #3R0897, Condition 2 and NRB Rule 34(A).
3 21. On November 21, 2013, the Agency sent Respondents a Notice of Alleged Violation (NOAV) detailing the violations observed at the Tunbridge property and providing instructions to come into compliance with LUP #3R0897 and applicable salvage yard, hazardous waste and solid waste laws. 22. On February 13, 2014, Agency personnel and Respondents agreed to a junk vehicle removal schedule for the Tunbridge property of three (3) per week with documentation of proper disposal. 23. On April 8, 2014, Agency personnel conducted a follow-up site inspection at the Tunbridge . property and requested the disposal documentation for the vehicles that had been removed from the property in accordance with the February removal schedule. Respondents did not provide anY documentation. 24. During the inspection, Agency personnel observed no discernable reduction in the number of unregistered vehicles on the Tunbridge property and approximately forty ( 40) automobile batteries stored on the bare ground, a non-impervious surface, without cover. Agency personnel also observed a wrecked vehicle leaking oil onto the ground. 25. Pursuant to 10 V.S.A. §6616, HWMR §7-302(c) and §7-803(i), the release of hazardous material, including used oil, into the surface or groundwater, or onto the land of the state is prohibited. By releasing hazardous materials onto the land of the state, the Respondents have violated 10 V.S.A. §6616, HWMR §7-302(c) and §7-803(i). 26. On May 9, 2014, Agency personnel conducted a follow-up site inspection at the Tunbridge property and observed the property to be in substantially the same condition as observed during the April inspection. 27. To date, Respondents have not obtained a COR from the Secretary for the Tunbridge property. SHARON PROPERTY 28. Respondents own property located at 354 Moore Road in Sharon, Vermont with SPAN #57618110053 (the Sharon property). 29. On December 16, 2013, Agency personnel received information that junk vehicles were being moved from the Tunbridge property to the Sharon property.
4 30. On January 14, 2014, Agency personnel performed a site inspection of the Sharon property and observed approximately twenty-eight (28) unregistered vehicles, as well as numerous piles of discarded white goods and scrap metal. 31. Respondents' operation at the Sharon property meets the definition of a salvage yard pursuant to 24 V.S.A. §2241(7) and (15). 32. Respondents did not have a COAL from the municipality or a COR from the Secretary to operate a salvage yard on the Sharon property. By operating a salvage yard on the Sharon property without a COR, the Respondents have violated 24 V.S.A. §2242(a)(2). 33. During the inspection, Agency personnel observed that the Respondents had failed to install a gate and effectively screen the salvage yard from public view with a fence or vegetation. By failing to have a gate, fence or vegetation to effectively screen the Sharon property salvage yard from public view, Respondents have violated 24 V.S.A. §2257(a). 34. On January 16, 2014, Agency personnel sent Respondents a NOAV detailing the violations observed at the Sharon property and providing instructions to come into compliance with applicable salvage yard law. 35. To date, Respondents have not obtained a COR from the Secretary for the Sharon property.
ORDER
Upon receipt of this Administrative Order, the Respondents shall: A. For the violations described above, Respondents shall pay a total penalty of $75,100.00. Payment shall be by check made payable to the "Treasurer, State of Vermont" and forwarded to: Administrative Assistant Agency of Natural Resources Environmental Compliance Division 1 National Life Drive, Davis 2 Montpelier, VT 05620-3803
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 ( effective date).
5 B. Pursuant to 10 V.S.A. §8010( e)(2), by no later than 30 days following the entry ofthis Order by the Superior Court, Environmental Division, the Respondents shall pay the amount of One Thousand One Hundred Fifty-Eight Dollars and Sixty Cents ($1,158.60) (U.S.), to reimburse the Natural Resources Board for the costs of this enforcement action, by good check made payable to the "State of Vermont." This payment shall be sent to the following address: Natural Resources Board Dewey Building 1 National Life Drive Montpelier, Vermont.05620-3201
C. Respondents shall immediately cease accepting junk, motor vehicles, tires, vehicle parts, or any other materials at the Tunbridge and Sharon properties. D. No later than thirty (30) consecutive calendar days following the effective date of this Order, Respondents shall either: 1) submit an application for a COAL to the Town of Tunbridge and to the Town of Sharon, with a copy of each application to the Agency, or 2) remove all junk and junk motor vehicles from the subject property and properly dispose of them at a certified salvage yard or shredder. Junk motor vehicles shall be removed intact and shall not be crushed or otherwise dismantled prior to delivery to the certified salvage yard or shredder, except by a mobile crusher equipped with an on-board fluid recovery system. E. In the event Respondents receive a COAL from the applicable Town, then no later than fifteen (15) consecutive calendar days following the issuance of the COAL, Respondents shall submit to the Agency an administratively complete application for a COR. F. No later than forty-five (45) consecutive calendar days following the effective date of this Order, Respondents shall submit an amendment application to the District 3 Environmental Commission to amend LUP #3R0897 to allow the operation of a towing and auto salvage business on the Tunbridge property. Respondents shall diligently pursue its Land Use Permit application. For purposes of this Order, "diligently pursue" shall mean that Respondents shall (a) respond to any and all requests for information from the District 3 Environmental Commission or the Coordinator for the Commission ( as applicable) by the date set by the Commission or Coordinator; and (b) in good faith meet and comply with all scheduling or
6 other orders or memoranda issued by the Commission. Respondents shall not be responsible for delays outside their control, including those caused by the Commission. G. In the event Respondent's application for a COAL, COR, or LUP amendment is denied, then Respondents shall remove all junk and junk motor vehicles from the subject property and properly dispose of them at a certified salvage yard, permitted solid waste disposal facility, hazardous waste disposal facility or shredder, as required by law no later than thirty (30) consecutive calendar days following the Town, Agency, or District denial, whichever is applicable. Junk motor vehicles shall not be crushed prior to delivery to the certified salvage yard and must be sent to a salvage yard with a current VT permit, or, if the salvage yard is out of state, current permit or permissions from the state in which the salvage yard is located. H. No later than forty-five (45) consecutive calendar days following the denial of an application described in paragraph G above, Respondents shall provide documentation of proper disposal to the Agency, including identification of the certified salvage yard and date of disposal and cease all unpermitted activity on the Project Tract. I. Respondents shall not operate, establish, or maintain a salvage yard on the Tunbridge or Sharon property unless and until all applicable environmental permits are issued, including but not limited to, a COAL from the applicable Town, an Act 250 LUP or LUP Amendment, and a COR/Salvage Yard Permit. J. Respondents shall promptly respond to the directives and requests for information of Agency and NRB personnel within the timelines specified.
RESPONDENTS' RIGHT TO A HEARING BEFORE THE ENVIRONMENTAL COURT
The Respondent has the right to request a hearing on this Administrative Order before the Environmental Court under 10 V.S.A. §8012 by filing a Notice of Request for Hearing within fifteen (15) days of the date the Respondent receives this Administrative Order. The Respondent must timely file a Notice of Request for Hearing with both the Secretary and the Environmental Court at the following addresses:
7 1. Secretary, Agency ofNatural Resources c/o: Enforcement & Litigation Section, 1 National Life Drive, Davis 2 Montpelier, VT 05620-3901
2. Clerk, Superior Court, Environmental Division 32 Cherry Street, 2nd Floor, Suite 303 Burlington, VT 05401
EFFECTIVE DATE OF THIS ADMINISTRATIVE ORDER
This Administrative Order shall become effective on the date it is received by the Respondents unless the Respondents file a Notice of Request for Hearing within fifteen (15) days ofreceipt as provided for in the previous section hereof. The timely filing of a Notice of Request for Hearing by the Respondents shall stay the provisions (including any penalty provisions) of this Administrative Order pending a hearing by the Environmental Court. If the Respondents do not make a timely filing of a Notice of Request for Hearing, this Administrative Order shall become a final Judicial Order when filed with and signed by the Environmental Comt.
COMPLIANCE WITH THIS ADMINISTRATIVE ORDER
If the Respondent fails or refuses to comply with the conditions of a final Judicial Order, the Secretary shall have cause to initiate any further legal action against the Respondent including but not necessarily limited to, those available to the Secretary pursuant to the provisions of 10 V.S.A. Chapters 201 and 211.
D,ood m 1# ,v~,,, iliisdJJmy ,r ft , 2016.
SECRETARY, AGENCY OF NATURAL RESOURCES
BY:~-.l'"'---''--h,1-'-""''--"""""::...._~~~~~~~ Alyssa B. c uren, Commissioner Departm nt of Environmental Conservation
8 STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No.
SECRETARY,VERMONT AGENCY OF NATURAL RESOURCES, Plaintiff
V,
BRIAN BLAKEMAN AND KYLE BLAKEMAN d/b/a BLAKEMAN'S TOWING AND RECOVERY, Respondents
Affidavit of Marc Roy
I, Marc Roy, being duly sworn do attest:
1. I am of legal age and a resident of the State of Vermont.
2. I am employed as a Senior Environmental Program Manager in the Waste Management and Prevention Division of the Agency ofNatural Resources.
3. Based upon personal observations, review of the relevant Waste Management and Prevention Division program file, and conversations with witnesses, the violations described in the Statement of Facts section of the above-entitled Administrative Order occurred during the time periods set forth therein.
, Vermont this
-,J-. Subscribed and sworn before me on the /5 of ,Ju.J) ,2016.
NotaryPubli~~~ My Commission Expires: Q;;! J /0 JJ 9 ' STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No.
SECRETARY,VERMONT AGENCY OF NATURAL RESOURCES, Plaintiff
v.
BRIAN BLAKEMAN AND KYLE BLAKEMAN d/b/a BLAKEMAN'S TOWING AND RECOVERY, Respondents
Affidavit of Aaron Brondyke
I, Aaron Brondyke, being duly sworn do attest:
1. I am oflegal age and a resident of the State of Vermont.
2. I am employed as an Enforcement Officer with the Vermont Natural Resources Board.
3. Based upon personal observations, review of the relevant Act 250 pennit file, and conversations with witnesses, the violations described in the Statement of Facts section of the above-entitled Administrative Order occurred during the time periods set forth therein.
Subscribed and sworn before me on the J~"--of_c __~~----,.~M-i..LL~,,...~1,---~-~--:,_--_.:;:::, ___ ,, 2016.
Notdry Public ""S,;····
My Commission Expires: d ·/() -Jq