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BILL AS INTRODUCED 2007-2008

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H.685

Introduced by Representative Deen of Westminster

Referred to Committee on

Date:

Subject:  Conservation; environmental enforcement

Statement of purpose:  This bill proposes to require the secretary of natural resources or the land use panel to 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 increases the maximum amount for administrative penalties and defines what constitutes economic benefit obtained as a result of a violation.  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 allows the agency of natural resources to enter into consent decrees and to issue stop work orders.  It allows the simultaneous filing of an administrative order with the attorney general and the environmental court.  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.  It authorizes enforcement of minor environmental and natural resources violations as judicial bureau offenses.  Finally, it authorizes and funds the creation of two additional environmental enforcement officers.

AN ACT RELATING TO ENFORCEMENT OF ENVIRONMENTAL LAWS

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

Sec. 1.  10 V.S.A. § 8002 is amended to read:

§ 8002.  DEFINITIONS

As used in this chapter:

(1)  “Board” means the natural resources board defined by subdivision 6001(1) of this title.

(2)  “Compliance” means compliance with the statutes specified in section 8003 of this title, and with any related rules, permits, assurances, or orders.

(3)  “Investigator” means an investigator designated and duly authorized by the secretary or the board.

(4)  “Person” means any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department or subdivision of the state, federal agency, or any other legal or commercial entity.

(5)  “Permit” means any permit, license, certification or transitional operational authority issued under any of the statutes specified in section 8003 of this title.

(6)  “Respondent” means a person who has committed or is alleged to have committed a violation.

(7)  “Secretary” means the secretary of the agency of natural resources, or the secretary’s duly authorized representative.

(8)  “Stop work order” means an order to cease construction or other activity.

(9)  “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.

(10)  “Land use panel” means the land use panel of the board, as established under chapter 151 of this title.

(11)  “Economic benefit” means a reasonable approximation of any gain, advantage, wrongful profit, or delayed avoided cost, financial or otherwise, obtained as a result of a violation.  Economic benefit shall not be limited to only competitive advantage obtained.

Sec. 2.  10 V.S.A. § 8006 is amended to read:

§ 8006.  WARNING; NOTICE OF ALLEGED VIOLATION

(a)  When the secretary determines that a violation will or is likely to occur, the secretary may issue a written warning which shall be served on the respondent in person or by certified mail, return receipt requested.  The warning shall include a brief description of the prospective violation, identification of the statute, rule, permit, assurance, or order that is the subject of the prospective violation and a brief description of the potential enforcement actions which may be taken if the violation occurs.

(b)  When the secretary determines that a violation exists, the secretary may issue a written notice of the alleged violation.  The notice shall be served on the respondent in person or by certified mail, return receipt requested.  The notice shall include a brief description of the alleged violation, identification of the statute, rule, permit, assurance, or order that is the subject of the violation and, a brief description of the secretary’s intended course of action to address the alleged violation, and, if appropriate, specific time lines and directives to achieve compliance.


Sec. 3.  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 in which immediate action is required, the environmental court, on request of any member of the public, shall schedule a formal hearing or informal proceedings, in 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. 4.  10 V.S.A. § 8007a is added to read:

§ 8007a.  CONSENT AGREEMENTS
(a)  As an alternative to administrative or judicial proceedings or to an assurance of discontinuance under section 8007 of this title, the agency may initiate discussions with any respondent who wishes to resolve a violation through settlement.  Settlement discussions entered into under this section shall not affect the respondent’s obligation to file a timely answer. 
(b)  Any and all terms and conditions of a settlement entered under this section shall be recorded in a written consent agreement signed by all parties or their representatives.  The consent agreement shall state that, for the purpose of the proceeding, the respondent: 
(1)  admits the jurisdictional allegations of the notice of alleged violation; 
(2)  admits the facts stipulated in the consent agreement or neither admits nor denies specific factual allegations contained in the notice of alleged violation; 
(3)  consents to the assessment of any stated penalty, to the issuance of any specified compliance or corrective action order, to any conditions specified in the consent agreement, and to any stated permit requirement set forth by the agency; and 
(4)  waives any right to contest the allegations and its right to appeal the proposed final order accompanying the consent agreement.
(c)  A consent agreement executed under this section shall be filed with the environmental court.  When signed by the environmental court, the assurance shall become a judicial order. 

Sec. 6.  10 V.S.A. § 8007b is added to read:

§ 8007b.  STOP WORK ORDERS

(a)  In order to determine if a violation exists, the secretary may issue a stop work order that directs a respondent to stop work or other activities until the secretary determines if a violation exists.  The secretary may issue a stop work order in his or her sole discretion based upon information obtained by or made available to the secretary.  The secretary shall issue a determination of whether a violation exists within five days of issuing a stop work order.

(b)  A stop work order shall include:

(1)  a statement of the facts which provide the basis for issuing the stop work order;

(2)  a statement that the respondent has a right to appeal the stop work order to the environmental court;

(3) a statement that the order is effective on receipt unless stayed by the environmental court pursuant to subsection (c) of this section; and

(4)  if applicable, a directive that the respondent take actions necessary to abate potential or existing environmental or health hazards.

(c)  Appeal of a stop work order shall not stay the effect thereof unless the environmental court determines otherwise upon a showing of good cause.

(d)  The stop work order shall be served on the respondent in person or by certified mail, return receipt requested.

Sec. 5.  10 V.S.A. § 8008 is amended to read:

§ 8008.  ADMINISTRATIVE ORDERS

(a)  The secretary may issue an administrative order when the secretary determines that a violation exists.  The order shall be served on the respondent in person or by certified mail, return receipt requested.  A copy of the order also shall be delivered to the attorney general.  An order shall be effective on receipt unless stayed under subsection 8012(e) of this title.

(b)  An order shall include:

(1)  a statement of the facts which provide the basis for claiming the violation exists;

(2)  identification of the applicable statute, rule, permit, assurance or order;

(3)  a statement that the respondent has a right to a hearing under section 8012 of this title, and a description of the procedures for requesting a hearing;

(4)  a statement that the order is effective on receipt unless stayed on request for a hearing filed within 15 days; and

(5)  if applicable, a directive that the respondent take actions necessary to achieve compliance, to abate potential or existing environmental or health hazards, and to restore the environment to the condition existing before the violation.

(c)  An order may include:

(1)  a “stop work” order that directs the respondent to stop work until a permit is issued, compliance is achieved, a hazard is abated, or any combination of the above.  In issuing such an order, the secretary shall consider the economic effect of the order on individuals other than the respondent;

(2)  a stay of the effective date or processing of a permit under section 8011 of this title; and

(3)  a proposed penalty or penalty structure.

(d)(1)  The administrative order and proof of service shall be simultaneously filed with the attorney general and the environmental court.  The court shall sign the administrative order in the event that:

(A)  The administrative order is properly served on a respondent in accordance with subsection (a) of this section;

(B)  The respondent does not request a hearing in accordance with subsection (b) of this section; and

(C)  the order otherwise meets the requirements of this chapter.

(2)  When signed by the environmental court, the administrative order shall become a judicial order.  Upon motion by the attorney general made within 10 days of the date the administrative order is signed by the court and upon a finding by the court that the order is insufficient to carry out the purposes of this chapter, the court shall vacate the order.

Sec. 6.  10 V.S.A. § 8010(c) is amended to read:

(c)  A penalty of not more than $25,000.00 $37,500.00 may be assessed for each determination of a separate violation.  In addition, if the secretary determines that a violation is continuing the secretary may assess a penalty of not more than $10,000.00 $15,000.00 for each day the violation continues.  The maximum amount of penalty assessed under this subsection shall not exceed $100,000.00 $150,000.00.


Sec. 7.  10 V.S.A. § 8011 is amended to read:

§ 8011.  PERMIT STAYS

(a)(1)  An administrative order may stay the effective date or processing of a permit:

(1)(A)  when any activity has been commenced illegally without a permit.  The order may stay the effective date of the permit for a period of time up to the number of days that the activity was commenced before the permit was issued.  This period of time shall not include the time from the date that work was stopped until the date a permit is issued; or

(2)(B)  when an applicant for a permit, or for an amendment to a permit, is not in compliance with an administrative order or an assurance of discontinuance with respect to a violation that is directly related to the activity which is the subject of the application; or

(3)  when an applicant for a permit, or for an amendment to a permit, has one or more current violations, which when viewed together constitute substantial noncompliance.

(2)  An administrative order shall stay the effective date or processing of a permit when an applicant for a permit or for an amendment to a permit has one or more current violations, which when viewed together constitute substantial noncompliance.

(b)  A stay shall be issued under this section only if the violation was caused by the applicant, by a person under the applicant’s control or by a person who has control of the applicant.

(c)  The processing of the application may be stayed until the respondent is in compliance with the directives in the order.  An order for a permit stay shall not be stayed pending a hearing.

(d)  In lieu of a permit stay under subdivision (a)(2) or (3) of this section, where an applicant for a permit or an amendment to a permit is not in compliance with an administrative order or an assurance of discontinuance, an administrative order may require the applicant to post a bond or other financial surety in an amount reasonably calculated to cover the costs necessary to achieve compliance as a condition for the processing of the application.

Sec. 8.  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. 9.  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. 10.  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. 11.  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. 12.  4 V.S.A. § 1102 is amended to read:

§ 1102.  JUDICIAL BUREAU; JURISDICTION

(a)  A judicial bureau is created within the judicial branch under the supervision of the supreme court.

(b)  The judicial bureau shall have jurisdiction of the following matters:

(1)  Traffic violations alleged to have been committed on or after July 1, 1990.

(2)  Civil ordinance violations alleged to have been committed on or after July 1, 1994.

(3)  Minor fish and wildlife violations alleged to have been committed on or after September 1, 1996.

* * *

(13)  Violations of 18 V.S.A. § 4249, relating to the introduction of tobacco or tobacco products into a correctional facility.

(14)  Minor violations of the statutes set forth in 10 V.S.A. § 8003(a).

(c)  The judicial bureau shall not have jurisdiction over municipal parking violations.

(d)  Three hearing officers appointed by the court administrator shall determine waiver penalties to be imposed for violations within the judicial bureau’s jurisdiction, except that municipalities shall adopt full and waiver penalties for civil ordinance violations pursuant to section 1979 of Title 24.  For purposes of municipal violations, the issuing law enforcement officer shall indicate the appropriate full and waiver penalty on the complaint.

Sec. 12.  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.

Sec. 13.  AGENCY OF NATURAL RESOURCES REPORT ON

                ENFORCEMENT BY THE DEPARTMENT OF FORESTS,

                PARKS AND RECREATION

On or before January 15, 2009, the secretary of natural resources shall report to the house committee on natural resources and energy, the house committee on fish, wildlife and water resources, and the senate committee on natural resources and energy with a proposal to increase enforcement of the existing laws and regulations within the jurisdiction of the department of forests, parks and recreation.  The report shall include:

(1)  An evaluation and recommendation of whether violations of laws and rules within the jurisdiction of the department of forests, parks and recreation should be enforced as judicial bureau offenses under 4 V.S.A.

§ 1102.

(2)  An analysis of whether effective enforcement of the laws and rules within the jurisdiction of the department of forests, parks and recreation requires additional enforcement authority not currently included in 10 V.S.A. chapter 201 or 29 V.S.A. chapter 11.

(3)  A recommendation of whether authority beyond the ability of filing a civil action should be granted to the department of forests, parks and recreation to enforce encroachments on state land boundaries, including the unauthorized cutting of trees.

(4)  An assessment of the feasibility and necessity for statutory or regulatory changes to enhance compliance with state park rules;

(5)  A proposal to clarify public access rights along state forest highways; and

(6)  A proposal to use rulemaking by the department of forests, parks and recreation to establish enforceable standards and increased fines and penalties where appropriate.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us