STATE OF VERMONT
SUPERIOR COURT                                                             ENVIRONMENTAL DIVISION
                                                                              Docket No. 98-8-15 Vtec

                                 ANR v Supeno, Supeno & Ernst

                                  ENTRY REGARDING MOTION

Count 1, ANR Enfc.Administrative Order (98-8-15 Vtec)
Count 2, ANR Enfc.Administrative Order (98-8-15 Vtec)
Count 3, ANR Enfc.Administrative Order (98-8-15 Vtec)

Title:           Motion to Strike Interrogatories 19 & 20 (Motion 2)
Filer:           Agency of Natural Resources
Attorney:        John S. Zaikowski
Filed Date:      November 30, 2015

Response filed on 12/09/2015 by Attorney David E. Bond for Respondent Barbara J. Ernst
      Opposition

The motion is GRANTED.

       This matter is an enforcement action by the Vermont Agency of Natural Resources
(ANR) against Francis J. Supeno, Barbara L. Supeno, and Barbara J. Ernst (Respondents) for
alleged wastewater and water supply violations. ANR issued an administrative order upon
Respondents, which assessed a $29,325.00 penalty. Respondents appealed the AO to this
Court.1 This Order addresses ANR’s motion to strike interrogatories.
       Respondents served a set of twenty-two interrogatories on ANR on November 2, 2015.
Interrogatory 20 asks ANR to “identify by name, filing date, and docket number, all litigated
penalties involving the Agency for the last ten years.” Interrogatory 19 asks ANR to “identify all
penalties assessed by the Agency under its Administrative Penalty Form, since the current
version of the Administrative Penalty Form first came into use.” It contains eight subparts,
which ask the Agency to state:
            a.   the name of the person penalized;
            b.   the date the penalty was assessed;
            c.   the nature of the alleged violation(s);
            d.   the amount of the penalty assessed;
            e.   an explanation as to how the penalty was calculated;


        1
           Respondents also filed an action against ANR in the Civil Division, alleging discrimination and other
constitutional torts relating to this enforcement action. On November 13, 2015, Respondents filed a motion to stay
this proceeding pending the outcome of their civil case. While Respondents’ motion to stay was pending in this
Court, the Civil Division stayed Respondents’ civil action. Respondents’ motion to stay is therefore MOOT.
          f.  whether the penalty that was imposed was an amount arrived at through
              compromise;
         g. whether the penalty was the topic of litigation;
         h. whether the litigation was filed as an emergency proceeding.
See Defendants’ Mot. to Stay Ex. B, filed Nov. 13, 2015. ANR has used its Administrative
Penalty Form for the last six years.
       ANR has moved to strike Interrogatories 19 and 20. ANR argues that these
interrogatories are irrelevant in a de novo appeal, that they are overly broad and burdensome,
and that they are not necessary to a full and fair determination. Respondents insist that the
information sought “will allow the Court to consider whether the amount of the proposed
penalty—weighed against the nonexistent harm—is in proportion to similar violations, and
accordingly, whether the Agency’s penalty is arbitrary and capricious.” See Defendants’ Reply
to Opp. to Mot. to Stay at 3, filed Dec. 9, 2015.
        Under Vermont Rule of Civil Procedure 26(b)(1), information that is “reasonably
calculated to lead to the discovery of admissible evidence” is within the scope of discovery.
This same rule also allows the Court to limit discovery if it is unreasonably duplicative; available
from a more convenient source; or unduly burdensome, taking into account the needs of the
case. Discovery is generally even more abridged in environmental enforcement appeals: parties
must produce all written statements and information regarding a violation, but “[n]o other
discovery or depositions, written interrogatories, or requests to admit shall be permitted
except that which is [sic] necessary for a full and fair determination of the proceeding.” 4 V.S.A.
§ 1004.
       In an enforcement appeal, the Court reviews administrative penalties de novo—that is,
we “review and determine anew the amount of a penalty.” 10 V.S.A. § 8012(b)(4). The Court’s
primary considerations in assessing penalties are the penalty factors in outlined in 10 V.S.A.
§ 8010. Some information about past penalties may assist the Court in establishing a penalty
baseline for similar violations. We are therefore hesitant to say, as ANR argues, that the
requested information is outside the scope of discovery.
         We do agree, however, that it would be unduly burdensome to require ANR to compile
this information. Respondents’ interrogatories, which ask for details on every administrative
order ANR has issued for the last six years and every litigated order for the last ten, are very
broad. These questions would yield a significant amount of unhelpful material, and would be
time-consuming to answer. Furthermore, the sum at stake in this proceeding—$29,350.00—is
likely less than the legal fees the parties would incur through lengthy discovery. And, as ANR
points out, Respondents could compile much of this information themselves by examining the
final administrative orders posted on ANR’s website (which include decisions by this Court for
appealed administrative orders).          See ANR Compliance and Enforcement Division,
Administrative Orders, http://ftp.anr.state.vt.us/dec/co/enf/cfm/orders/enf-orders-AO.cfm
(last visited June 6, 2016). While public records do not provide all of the information
requested—for instance, Respondents could not glean “an explanation as to how the penalty
was calculated” (Interrogatory 19(e)) or learn whether a penalty was the result of a settlement
(Interrogatory 19(f))—it would be unduly burdensome to require ANR to provide this
information for all enforcement cases for the last six years, given that only a small portion of
these enforcement cases would provide a useful comparison for this appeal.
      The Court GRANTS ANR’s motion to strike Interrogatories 19 and 20 because they are
unduly burdensome given the needs of this case and because such broad requests for
information are not necessary to a full and fair determination in this matter. See V.R.C.P.
26(b)(1); 4 V.S.A. § 1004(b).
        The Court will schedule a status conference to discuss a schedule for moving forward in
this proceeding.

So ordered.


Electronically signed on June 09, 2016 at 03:33 PM pursuant to V.R.E.F. 7(d).



_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division




Notifications:
John S. Zaikowski (ERN 4276), Attorney for Petitioner Agency of Natural Resources
David E. Bond (ERN 3647), Attorney for Respondent Francis Supeno
David E. Bond (ERN 3647), Attorney for Respondent Barbara Supeno
David E. Bond (ERN 3647), Attorney for Respondent Barbara J. Ernst

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