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BILL AS INTRODUCED 2007-2008

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H.259

Introduced by Representatives Klein of East Montpelier, Botzow of Pownal, Canfield of Fair Haven, Edwards of Brattleboro, Fisher of Lincoln, French of Randolph, Haas of Rochester, Kitzmiller of Montpelier, Krawczyk of Bennington, Leriche of Hardwick, Maier of Middlebury, Marek of Newfane, Masland of Thetford, McCullough of Williston, Monti of Barre City, Mrowicki of Putney, Nuovo of Middlebury, Pellett of Chester, Peltz of Woodbury, Sharpe of Bristol, Trombley of Grand Isle and  Zuckerman of Burlington

Referred to Committee on

Date:

Subject:  Conservation; environmental enforcement; public enforcement

Statement of purpose:  This bill proposes to require that the secretary of natural resources or the land use panel provide an opportunity for public input before signing an assurance of discontinuance.  It requires that monetary penalties be the primary form of penalty imposed for environmental violations, instead of natural resource enhancements.  It allows a member of the public to argue that a proposed assurance of discontinuance is insufficient.  It requires the secretary of natural resources to stay the processing of a permit application for any applicant that has payments due on previous penalties that have been assessed, or that is the subject of a pending enforcement action for which penalties have not yet been assessed.  It requires public notice of consultations between the attorney general and the secretary of natural resources or the land use panel regarding fines imposed.  It requires creation of a publicly available database of enforcement actions.  It enables public enforcement of environmental laws by allowing citizens to bring suit to assure enforcement.  It endows environmental enforcement officers with full law enforcement status.  Finally, it authorizes and funds the creation of two additional environmental enforcement officers.

AN ACT RELATING TO ENHANCING PUBLIC AWARENESS AND PARTICIPATION IN ENFORCEMENT OF ENVIRONMENTAL LAWS

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  10 V.S.A. § 8007 is amended to read:

§ 8007.  ASSURANCES OF DISCONTINUANCE

(a)  As an alternative to administrative or judicial proceedings, the secretary, or the land use panel, may accept from a respondent an assurance of discontinuance of a violation.  An assurance of discontinuance shall include:

(1)  a statement of the facts which provide the basis for claiming the violation exists and a description of the alleged violation determined by the secretary or the land use panel; and

(2)  an agreement by the respondent to perform specific actions to prevent, abate or alleviate environmental problems caused by the violation, or to restore the environment to its condition before the violation, including financial responsibility for such actions.

(b)  An assurance of discontinuance may include:

(1)  prevention, abatement, alleviation, or restoration schedules;

(2)  contribution toward other projects related to the violation, which the respondent and the secretary or the land use panel agree will enhance the natural resources of the area affected by the violation, or their use and enjoyment and which are accompanied by monetary penalties set at amounts that are high enough to provide the primary penalty for the act in question; and

(3)  payment of monetary penalties, including stipulated penalties for violation of the assurance. 

(c)  An assurance of discontinuance shall be in writing and signed by the respondent and shall specify the statute or regulation alleged to have been violated.  The assurance of discontinuance shall be simultaneously filed with the attorney general and the environmental court.  In addition, the secretary or the land use panel shall publish notice of a proposed assurance of discontinuance and accept public comment for at least 10 days before entering an agreement on an assurance of discontinuance, except in cases where some immediate action is required, such as cleanup, which if otherwise delayed could result in substantial damage to either public health or the environment.  Except in cases where immediate action is required, the environmental court, on request of any member of the public, shall schedule a formal hearing or informal proceedings, at either of which the public is entitled to participate.  Opportunity for public participation on reasonable notice, including intervention by interested persons, is permitted at formal hearings.  At an informal proceeding, members of the public shall be afforded a reasonable opportunity to testify and to submit questions to the parties to the assurance of discontinuance.  Informal proceedings held under this section need not comply with the requirements of 3 V.S.A. chapter 25.  An informal hearing under this subsection shall be scheduled only upon adequate notice to the public.  When signed by the environmental court, the assurance shall become a judicial order. Upon motion by the attorney general, or a member of the public, made within 10 days of the date the assurance is signed by the court and upon a finding that the order is insufficient to carry out the purposes of this chapter, the court shall vacate the order.

* * *

Sec. 2.  10 V.S.A. § 8014(b) is amended to read:

(b)  If a penalty is assessed and the respondent fails to pay the assessed penalty within the time prescribed, the secretary may bring a collection action in any superior or district court.  In addition, the secretary shall stay the effective date or the processing of any pending permit application or renewal application in which the respondent is involved until payment in full of all outstanding penalties has been received.  This prohibition extends to all instances involving pending prosecutions of or settlement negotiations with permittees who have been found in substantial violation of environmental laws, but who have not yet had fines assessed against them.

Sec. 3.  10 V.S.A. § 8017 is amended to read:

§ 8017.  ANNUAL REPORT; ENFORCEMENT TRANSPARENCY

(a)  The secretary and the attorney general shall report annually to the president pro tempore of the senate, the speaker of the house, and the chairs of the senate and house committees on natural resources and energy.  The report shall be filed no later than January 15, on the enforcement actions taken under this chapter, and on the status of citizen complaints about environmental problems in the state.  The report shall describe, at a minimum, the actions taken, disposition of cases, the amount of penalties collected, and the cost of administering the enforcement program.

(b)  The secretary, the land use panel, and the attorney general shall document all consultations among them regarding the appropriateness of fines imposed pursuant to assurances of discontinuance settlements and shall make those documents available for inspection and copying by members of the public, pursuant to the provisions of subchapter 3 of chapter 5 of Title 1 relating to access to public documents.

(c)  The secretary, land use panel, and attorney general shall create a publicly available, searchable database of enforcement actions under this chapter.  This database shall include all instances in which a notice of violation is sent.

Sec. 4.  10 V.S.A. chapter 215 is added to read:

CHAPTER 215.  PUBLIC ENFORCEMENT OF

ENVIRONMENTAL LAW

§ 8301.  DEFINITIONS

As used in this chapter:

(1)  “Person” means any individual, partnership, association, corporation, or other legal or commercial entity, and the state of Vermont or any agency, department, or subdivision of the state.

(2)  “Violation” means noncompliance with one or more of the statutes specified in section 8003 of this title, or any related rules, permits, assurances, or orders.

§ 8302.  RIGHT OF ACTION; VENUE

(a)  A person may commence a civil action for equitable or declaratory relief on the person’s own behalf against:

(1)  any person who has committed or is committing a violation or an act which is likely to result in a violation; or

(2)  any governmental entity against which is alleged the failure to perform any act or duty under any statute listed in subsection 8003(a) of this title which is not discretionary with that governmental entity.

(b)  An action commenced under this section shall be brought in the environmental court.

§ 8303.  PREREQUISITE TO COMMENCEMENT OF ACTION;                   

              GOVERNMENTAL PREEMPTION OF PRIVATE ACTION;

              PARTY STATUS

(a)  No action may be commenced under subdivision 8302(a)(1) of this title:

(1)  prior to 60 days after the plaintiff has given notice of the violation to:

(A)  all governmental entities charged by statute to regulate the conduct which is the subject of the complaint; and

(B)  the person who is alleged to be in violation; or

(2)  if a governmental entity charged by statute to regulate the conduct which is the subject of the complaint has commenced and is diligently prosecuting an enforcement action to require compliance, as defined in subdivision 8002(2) of this title.  If the governmental entity prosecutes an enforcement action under chapter 47, 59, 159, or 211 of this title, any person may seek party status in the action as provided in Rule 24 of the Vermont Rules of Civil Procedure.  If the governmental entity prosecutes an enforcement action under chapter 201 of this title, any person may seek party status in that action under subsection 8012(d) of this title.

(b)  No action may be commenced under subdivision 8302(a)(2) of this title prior to 60 days after the plaintiff has given notice to the governmental entity which is alleged to have failed to perform the nondiscretionary act or duty.

(c)  If necessary to prevent immediate and irreparable harm from the conduct or activity which is the subject of the complaint, a person may commence an action for a temporary restraining order at any time after giving notice under this section.

(d)  Notice under this section shall be given in such manner as the secretary of natural resources shall prescribe by rule.

§ 8304.  INTERVENTION BY THE STATE

In any action brought under this chapter, the state may intervene as a matter of right as a party to represent its interests.

§ 8305.  AWARDS

The court may award costs, including reasonable attorney’s fees and fees for expert witnesses, to the plaintiff when the court determines that such an award is appropriate; provided, however, that costs may not be awarded against the state.  The court may award damages, which will be paid into the general fund.

§ 8306.  RIGHTS AND REMEDIES NONEXCLUSIVE

Nothing in this chapter shall be construed to impair or diminish any common law or statutory right or remedy which may be available to any person.  Rights and remedies created by this chapter shall be in addition to any other right or remedy, including the authority of the state to bring an enforcement action separate from that brought under this chapter.  No determination made by a court in an action maintained under this chapter, to which the state has not been a party, shall be binding upon the state in any enforcement action.

Sec. 5.  20 V.S.A. § 2358(c)(1) is amended to read:

(1)  “Law enforcement officer” means a member of the department of public safety who exercises law enforcement powers, a member of the state police, a municipal police officer, a constable who exercises law enforcement powers, a motor vehicle inspector, an employee of the department of liquor control who exercises law enforcement powers, an investigator employed by the secretary of state, board of medical practice investigators employed by the department of health, attorney general or a state’s attorney, an environmental enforcement officer employed by the agency of natural resources, a fish and game warden, a sheriff, or deputy sheriff who exercises law enforcement powers, or a railroad police officer commissioned pursuant to 30 V.S.A. § chapter 45, subchapter 8 of chapter 45 of Title 30.

Sec. 6.  ENVIRONMENTAL ENFORCEMENT OFFICERS

The establishment of two new classified environmental enforcement officers is authorized during fiscal year 2008 in the agency of natural resources, to be assigned as needed by the agency.  These positions shall be transferred and converted from existing vacant positions in the executive branch of state government.  For this purpose, the amount of $180,000.00 is appropriated from the general fund to the agency of natural resources in fiscal year 2008.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us