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Senate Calendar

monday, april 28, 2008

112th DAY OF BIENNIAL SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

ACTION CALENDAR

UNFINISHED BUSINESS OF THURSDAY, APRIL 24, 2008

House Proposal of Amendment

S. 313     Relating to a license to store and ship wine...................................... 2153

UNFINISHED BUSINESS OF FRIDAY, APRIL 25, 2008

House Proposal of Amendment

S. 114     An act relating to enhancing mental health parity............................... 2153

Joint Resolution for Action

JRH 59  Urging collaboration on accelerated learning for H.S. students.......... 2154

NEW BUSINESS

Third Reading

H. 863    Affordable housing and smart growth development.......................... 2155

                        Sen. Illuzzi amendment........................................................... 2155

                        Sen. Lyons amendment.......................................................... 2157

                        Sen. McCormack amendment................................................ 2158

Favorable with Proposal of Amendment

H. 812    Educational continuity for pregnant & parenting students.................. 2159

                        Education Committee Report................................................. 2159

House Proposal of Amendment to Senate Proposal of Amendment

H. 94      Relating to retail sales and taxing of specialty beers.......................... 2164

H. 884    Prekindergarten education programs............................................... 2165

NOTICE CALENDAR

Favorable

H. 545    Relating to the agency of Human Services........................................ 2165

                        Government Operations Committee Report............................ 2165


Favorable with Proposal of Amendment

H. 560    Elimination of the offender work programs board............................. 2165

                        Institutions Committee Report................................................ 2165

                        Appropriations Committee Report......................................... 2168

H. 865    Relating to Vermont Milk Commission............................................ 2168

                        Agriculture Committee Report................................................ 2168

                        Appropriations Committee Report......................................... 2173

H. 873    Relating to cleanup of Lake Champlain and other state waters.......... 2173

                        Natural Resources Committee Report.................................... 2173

                        Appropriations Committee Report......................................... 2186

H. 879    Duplicative reports of special education audits................................. 2187

                        Education Committee Report................................................. 2187

                        Appropriations Committee Report......................................... 2191

H. 885    Consistent measurement standards for economic growth.................. 2192

                        Ec. Dev., Housing & General Affairs Committee Report......... 2199

                        Appropriations Committee Report......................................... 2200

House Proposals of Amendment

S. 168     Operating a motor vehicle under influence of alcohol or drugs.......... 2201

S. 250     Amounts of cocaine\heron to trigger drug trafficking penalties........... 2203

S. 281     Relating to end-of-life care and pain management............................ 2204

S. 284     Dept of banking, insurance, securities & health care admin............... 2207

S. 304     Relating to groundwater withdrawal program................................... 2216

S. 311     Relating to use value appraisal program........................................... 2225

S. 345     Lowering the cost of workers’ compensation insurance.................... 2231

S. 357     Relating to domestic violence.......................................................... 2245

S. 364     Vertical audit & reliability assessment of Vermont Yankee............... 2265

House Proposal of Amendment to Senate Proposal of Amendment

H. 859    Substance abuse treatment, vocational training, & transitional housing for offenders to reduce recidivism, increase public safety, etc     2272

ORDERED TO LIE

S. 70       Empowering municipalities to regulate pesticides.............................. 2287


S. 108     Electing U.S. Representative & U.S. Senator by instant runoff......... 2287

H. 331    Financing the purchase of a mobile home......................................... 2287

H. 332    Sale and closure of mobile home parks............................................ 2287

JRS 24   Congressional “fast track” review of trade agreements..................... 2288


 

ORDERS OF THE DAY

ACTION CALENDAR

UNFINISHED BUSINESS OF THURSDAY, APRIL 24, 2008

House Proposal of Amendment

S. 313

An act relating to a license to store and ship wine.

The House proposes to the Senate to amend the bill by striking Sec. 1 and inserting in lieu thereof the following:

Sec. 1.  7 V.S.A. § 68 is added to read:

§ 68.  VINOUS BEVERAGE STORAGE AND SHIPPING LICENSE

The liquor control board may grant to a person who operates a climate-controlled storage facility in which vinous beverages owned by another person are stored for a fee a license that allows the licensee to store and transport vinous beverages on which all applicable taxes already have been paid.  A vinous beverage storage facility may also accept shipments from any licensed in-state or out-of-state vinous manufacturer that has an in-state or out‑of‑state consumer shipping license pursuant to section 66 of this title.  Vinous beverages stored may be transported only for shipment to the owner of the beverages or to another licensed vinous beverage storage facility, and the beverages shall be shipped only by common carrier in compliance with subsection 66(f) of this title.  The licensee shall pay a fee pursuant to subdivision 231(a)(20) of this title.   A license under this section shall be issued pursuant to rules adopted by the board.  A person granted a license pursuant to this section may not sell or resell any vinous beverages stored at the storage facility. 

UNFINISHED BUSINESS OF FRIDAY, APRIL 25, 2008

House Proposal of Amendment

S. 114

An act relating to enhancing mental health parity.

(For text of House Proposal of amendment, see Senate Journal of April 25, 2008, page 1152.)


Joint Resolution for Action

J.R.H.  59

Joint resolution urging secondary school and postsecondary educators and administrators to collaborate on accelerated learning opportunities for Vermont high school students

Offered by:  Representatives Gilbert of Fairfax, Ancel of Calais, Anderson of Montpelier, Andrews of Rutland City, Atkins of Winooski, Barnard of Richmond, Bissonnette of Winooski, Branagan of Georgia, Bray of New Haven, Clark of Vergennes, Clerkin of Hartford, Consejo of Sheldon, Crawford of Burke, Donovan of Burlington, Fitzgerald of St. Albans City, Gervais of Enosburg, Godin of Milton, Haas of Rochester, Hosford of Waitsfield, Howrigan of Fairfield, Johnson of South Hero, Lenes of Shelburne, Manwaring of Wilmington, Marek of Newfane, Martin of Springfield, McDonald of Berlin, Mitchell of Barnard, Mook of Bennington, Mrowicki of Putney, Ojibway of Hartford, Oxholm of Vergennes, Pearson of Burlington, Peltz of Woodbury, Perry of Richford, Potter of Clarendon, Spengler of Colchester, Stevens of Shoreham, Wheeler of Derby and Winters of Williamstown

Whereas, in today’s global economy, knowledge is power, and the U.S. Bureau of Labor Statistics has estimated that the majority of the fastest‑growing and highest‑paying occupations between now and 2014 will require postsecondary educational preparation, and

Whereas, research has shown that postsecondary success is predicated on rigorous academic preparation in high school and on students’ clear understanding of colleges’ and universities’ expectations of them once enrolled, and

Whereas, although more students enter college today than in 1988, the proportion of students graduating has declined, and the overall academic attrition results in fewer than 20 percent of 9th graders graduating with a college degree by the age of 24, and

Whereas, the United States cannot afford the loss of human capital on this scale and remain globally competitive, and

Whereas, programs providing for students to be enrolled simultaneously in high school and college courses enable students to experience the rigors of college studies while earning both high school and college credits, and

Whereas, according to the U.S. Department of Education, students participating in dual enrollment programs complete their college degrees more quickly and have higher graduation rates, and

Whereas, as of January 2006, over 40 states had policies related to dual enrollment, and in Vermont, there are currently agreements related to postsecondary technical education, and

Whereas, dual enrollment policies led to a nearly 1,000 percent increase in Minnesota high school students taking advanced placement tests, and a coordinated k-college education initiative in Georgia raised the percentage of high school students studying a rigorous core curriculum, and postremediation levels fell precipitously, and

Whereas, Vermont has recognized the value of accelerated learning, and the state’s high schools have experienced the highest percentage increase in the nation of advanced placement tests taken, the number of students taking the exams, and the number of students earning a score of at least 3 on a grading scale in which the highest grade is 5, and

Whereas, the Vermont State Colleges have multiple dual enrollment programs, and the Vermont State Colleges and the UVM administration are publicly committed to the university’s participation in a council of both pre-k-12 and postsecondary educators to inform and move forward pre-K-12 and postsecondary education as a continuum, now therefore be it

Resolved by the Senate and House of Representatives:

That the General Assembly applauds the existing dual enrollment programs in Vermont and encourages future efforts to expand the availability of postsecondary educational offerings for high school students, and be it further

Resolved:  That the secretary of state be directed to send a copy of this resolution to the commissioner of education, to the president of each public and private institution of higher education in Vermont, and to the chancellor of the Vermont State Colleges.

NEW BUSINESS

Third Reading

H. 863

An act relating to creation and preservation of affordable housing and smart growth development.

PROPOSAL OF AMENDMENT TO H. 863 TO BE OFFERED BY SENATOR ILLUZZI BEFORE THIRD READING

Senator Illuzzi moves that the Senate proposal of amendment be amended by adding a new Sec. 1 to read a follows:

Sec. 1a.  FINDINGS AND PURPOSE

     (a)  Act 250 was enacted as a land use law in 1970 by a General Assembly concerned about large scale, unregulated development in Vermont.  At that time, few towns had planning and zoning, and for the ones that did, there was limited staffing to enforce those rudimentary municipal laws.  Revisions were made to Act 250 in 1973, including the addition of 11 new subcriteria to criterion nine, relating to matters such as agricultural soils, energy conservation, earth resources and development affecting public investments, but the focus of the law remained to review large scale developments as those developments were defined.  As a result, a large number of developments around the state have been designed to avoid Act 250 jurisdiction, resulting in no or limited review of the cumulative impact of incremental development of nine or fewer lots in scattered locations.

(b)  Some argued in the 1970s that Act 250 regulatory review should be based a comprehensive land use plan that would delineate all the lands of the state by use classifications, but provided for refinements based on more detailed studies at the regional and local levels. Others disagreed, arguing that the regulatory review process under Act 250 was sufficient.  In the end, no such measure was ever approved.  The requirement that there be an Act 250 state land use plan was deleted from the law in 1984. 

     (c)  Since that time, the General Assembly incrementally has enacted legislation to plan land uses and encourage municipalities to approve compact residential neighborhoods in and around traditional villages and downtowns and in planned growth centers in accordance with smart growth principles. This planning act furthers that goal.

     (d)  Among the strategies to expedite the development of housing in these locations is to exempt certain residential development from Act 250, where it is demonstrated that such proposed land state use review is redundant with municipal land use review, and, through the careful targeting of eligible locations to impacted areas served by infrastructure, the potential for unplanned impact to natural resources and environmental quality is negligible.

     (e)  Targeting limited state incentives to smart growth locations must be balanced with careful planned development in the surrounding countryside.  To this end, strategies for improving certain Act 250 criteria to better manage scattered residential development and to curb strip development along the state’s highways should be studied and recommendations brought back before the General Assembly for review and consideration.

     (f)  Through the use of higher Act 250 thresholds, coupled with strengthening criteria related to scattered development, rural growth areas, transportation and settlement patterns, Vermont can better achieve the state’s planning and development goal of maintaining Vermont’s historic settlement pattern of compact village and urban centers separated by rural countryside.

     (g)  As of May 1, 2008, there are 23 designated downtowns and 76 village centers, but not all of the designated downtown or village centers have zoning bylaws or subdivision regulations, reducing the number of Vermont Neighborhood eligible village centers to 24 and designated downtowns to 22.  There is one designated growth center.  Therefore, the regulatory relief and municipal revenue incentive provided by this act will initially apply to those 46 communities.

     (h)  The regulatory relief and the municipal revenue incentive for these 46 municipalities may encourage other municipalities to undertake the task of seeking designation as a downtown, village center or town growth center, enacting zoning bylaws and subdivision regulations, and then proceeding to obtain designation as a Vermont Neighborhood.

AMENDMENT TO SENATE PROPOSAL OF AMENDMENT TO H.863 TO BE OFFERED BY SENATOR LYONS BEFORE THIRD READING

Senator Lyons moves to amend the Senate proposal of amendment as follows:

     First:  In Sec. 3, 24 V.S.A. §2793d(c), by adding a new subdivision (6) to read as follows:

(6)  the municipality has in effect appropriate regulatory provisions, to include planned unit development requirements and natural resource protection standards under zoning or subdivision bylaws that will avoid or mitigate impacts to important natural resources, promote clustering, and maintain the rural character and working landscape in rural areas of the municipality that are located outside of areas designated under this chapter.

Second:  In Sec. 4, 24 V.S.A. § 2793b(b)(2)(A), by adding at the end of the last sentence the words and shall not exceed 175 acres

Third:  In Sec. 7, 10 V.S.A. § 6001(27), in subdivision (A), after the word “agency” by adding the following .  Not more than 60 days prior to completion of a unit under this subdivision, the housing and conservation board shall be notified and offered to purchase the unit.

Fourth: In Sec. 16, (smart growth study committee) in subsection (a), by striking out subdivisions (1), (2) and (3) and inserting in lieu thereof the following:

(1)  Study Act 250 (10 V.S.A. § 6086) criterion 5, relating to traffic, criterion 9(H), relating to scattered development, criterion 9(L), relating to rural development, and other criteria identified by the committee, to determine the effectiveness of those criteria to promote compact settlement patterns, prevent sprawl, and protect important natural resources, and to make recommendations to improve the effectiveness of those criteria in preserving the economic vitality of Vermont’s existing settlements and preventing sprawl development.

(2)  Evaluate the development potential of existing designated downtowns, new town centers, and village centers and evaluate the community and natural resource impacts of developing surrounding lands.

(3)  Make recommendations for incentives designed to encourage municipalities to preserve Vermont’s working landscape and to develop Vermont neighborhoods and new housing.

(4) Develop recommendations for how best to conduct periodic assessments of the effectiveness of the designation programs established under chapter 76A of Title 24.

Fifth: In Sec. 16, (smart growth study committee) at the end of subsection (b), by adding a new subdivision to read as follows:

(J) the land use law center at Vermont Law School.

Sixth: By striking out Sec. 21, (Transitional Provision) in its entirety

Seventh: By adding a new Sec. 22 to read:

Sec. 22.  Regional Planning Commission Report on Infill Opportunities

     By no later than January 15, 2009, each regional planning commission is requested to inventory and map locations within its region that are served by municipal wastewater and water supply services and that are otherwise suitable for infill development and redevelopment, giving due regard to the location of important natural resources and primary agricultural soils.  The inventory and map shall be provided, by January 30, 2009, to the committees of the general assembly with jurisdiction over housing, natural resources, and agriculture.

And by renumbering the remaining section to be numerically correct.

PROPOSAL OF AMENDMENT TO H. 863 TO BE OFFERED BY SENATOR McCORMACK BEFORE THIRD READING

Senator McCormack moves that the Senate proposal of amendment in Sec. 3, 24 V.S.A. §2793d subsection (c) be amended by adding a new subdivision (6) to read as follows:

(6)  Residents hold a right to utilize household energy conserving devices.


Second Reading

Favorable with Proposal of Amendment

H. 812

An act relating to ensuring educational continuity for pregnant and parenting students.

Reported favorably with recommendation of proposal of amendment by Senator Giard for the Committee on Education.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  16 V.S.A. § 11(a) is amended to read: 

§ 11.  CLASSIFICATIONS AND DEFINITIONS

(a)  For the purposes of this title, unless the context otherwise clearly requires:

* * *

(28)  “State-placed student” means:

* * *

(C)  a pregnant or postpartum parenting pupil who, pursuant to subdivision 1073(c)(1) or (3) of this title, either is attending school at an approved education program in a residential facility or is enrolled in an approved independent school or a public outside the school district of residence pursuant to subsection 1073(b) of this title. to which the district of residence would not ordinarily pay tuition for other students living in the district; but does not mean:

 “State-placed student” does not include pupils (D)  a pupil placed within a correctional facility or in the Woodside Juvenile Rehabilitation Center or The Eldred School operated by the Vermont State Hospital.

* * *

(33)  “Pregnant or parenting pupil” means a legal pupil who is not a high school graduate, and who:

(A)  is pregnant; or

(B)  has given birth, has experienced a miscarriage, has placed a child for adoption, has voluntarily relinquished parental rights, or has had all parental rights terminated, if any of these has occurred within one year before the public or approved independent school or the approved education program receives a request for enrollment or attendance; or

(C)  is the parent of a child.

(34)  “Approved education program” means a program that is evaluated and approved by the state board pursuant to written standards, that is neither an approved independent school nor a public school, and that provides educational services to one or more pupils in collaboration with the pupil’s school district of residence or with a school to which the district of residence pays tuition.  An “approved education program” includes an “approved teen parent education program.”

(35)  “Teen parent education program” means a program designed to provide educational and other services to pregnant pupils or parenting pupils, or both.

Sec. 2.  16 V.S.A. § 828 is amended to read: 

§ 828.  TUITION TO APPROVED SCHOOLS, AGE, APPEAL

A school district shall not pay the tuition of a pupil except to a public or school, an approved independent school or, an approved tutorial program approved by the state board, nor shall payment, or an approved education program.  Payment of tuition on behalf of a person shall not be denied on account of age.  Unless otherwise provided, a person who is aggrieved by a decision of a school board relating to eligibility for tuition payments, the amount of tuition payable, or the school he or she may attend, may appeal to the state board and its decision shall be final.

Sec. 3.  16 V.S.A. § 1073 is amended to read: 

§ 1073.  “LEGAL PUPIL” DEFINED; ACCESS TO SCHOOL; PREGNANT AND PARENTING TEENS

* * *

(b)  Access to school. 

(1)  Right to a public education.  No legal pupil attending school at public expense, including a married, or a pregnant or postpartum parenting pupil, shall be deprived of or denied the opportunity to participate in or complete an elementary and secondary a public school education.  Notwithstanding the provisions of sections 822 and 1075 of this title, for reasons related to the pregnancy or birth, a

(2)  Right to enroll in any public or approved independent school.  A pregnant or postpartum parenting pupil may enroll in or attend any approved public school in Vermont or an adjacent state, approved independent school in Vermont, approved tutorial program, or other educational program approved by the state board approved education program

(c)  Pregnant and parenting pupils. 

(1)  Residential teen parent education programs.  The commissioner shall pay the educational costs for a pregnant or postpartum parenting pupil, who for purposes of this subdivision (1) is considered a state-placed student under subdivision 11(a)(28)(C) of this title, attending a state board an approved educational teen parent education program in a 24-hour residential facility for up to eight months after the birth of the child.  The commissioner may approve extension of extending the payment of educational costs based on a plan for reintegration of the student into the community or for exceptional circumstances as determined by the commissioner.  The district of residence, or if the district of residence does not maintain a school then the public or approved independent school to which the district pays tuition for its students and in which the pupil is enrolled (for purposes of this section, the “receiving school”), of a pupil in a 24-hour residential facility shall remain responsible for coordination of coordinating the pupil’s educational program and for planning and facilitating her subsequent educational program.

(2)  Nonresidential teen parent education programs. 

(A)  The pregnant or parenting pupil’s district of residence or the receiving school, if applicable, shall be responsible for planning and coordinating the pupil’s educational plan while attending a teen parent education program located anywhere in the state and for planning and facilitating the pupil’s subsequent educational plan, including the pupil’s transition back to the school in which she or he is enrolled.

(B)  A pregnant or parenting pupil may attend a nonresidential teen parent education program for a length of time to be determined by agreement of the pupil’s district of residence, the receiving school if applicable, the teen parent education program, and the pupil.  If these parties cannot reach agreement as to the duration of attendance, one or more of the parties may petition the commissioner for a review and determination of duration.  The commissioner’s decision shall be final. 

(C)  Subject to the provisions of subdivision (D) of this subdivision (2), in payment of the educational services provided to a publicly funded pregnant or parenting pupil attending an approved teen parent education program, the program shall receive 83 percent of the base education payment for the year of attendance prorated based on the pupil’s full‑time equivalent enrollment, as defined by state board rule, in academic courses at the teen parent education program.  For those programs operating during 12 months of the year, the full-time equivalent enrollment shall be prorated based on 18.5 hours for 52 weeks rather than 27.5 hours for a 35-week school year.  Responsibility for paying the teen parent education program is as follows:

(i)  If the pupil is enrolled in a school within the district of residence, then the district of residence shall pay the teen parent education program pursuant to this subdivision (C).

(ii)  If the pupil is enrolled in a receiving school, as defined in this section, then the receiving school shall:

(I)  Retain any tuition paid and continue to receive tuition from the district of residence for the pupil’s enrollment; and

(II)  Pay the teen parent education program pursuant to this subdivision (C).

(D)  For purposes of subdivision (C) of this subdivision (2),

(i)  The pregnant or parenting pupil shall be enrolled in a school maintained by the school district of residence or at the receiving school, if applicable. 

(ii)  The teen parent education program shall be approved by the state board pursuant to subdivision 11(a)(34) of this title.

(iii)  As determined by the district of residence or by the receiving school, if applicable, the pupil shall take academic courses at the teen parent education program that are the substantial equivalent of the courses required by the district of residence or receiving school leading to a high school diploma.  The district of residence or the receiving school, if applicable, will collaborate with the teen parent education program regarding the pupil’s programs, progress, and transition back to the school in which the pupil is enrolled.

(3)  Approved independent schools and public schools outside the district of residence that are not “receiving schools” for the district. 

(A)  A pregnant or parenting pupil who is enrolled in an approved independent school or a public school outside the pupil’s district of residence that is not a “receiving school” is considered a “state-placed student” pursuant to subdivision 11(a)(28)(C) of this title; for purposes of this subdivision (3), the district in which the pupil resides shall be called the “selected district.”

(B)  If the pregnant or parenting pupil enrolls in a public school within the selected district, then the pupil shall be counted within the district’s state-placed student average daily membership pursuant to subdivision 4001(1)(B) of this title.

(C)  If the pregnant or parenting pupil enrolls in a public or approved independent school to which the selected district pays tuition for other students in the district (the “selected school”), then the commissioner shall pay the educational costs for the pupil pursuant to section 4012 of this title and the selected district shall not include the student within its average daily membership.  

(D)  If, after enrolling in a school under subdivision (B) or (C) of this subdivision (3), the pregnant or parenting pupil wishes to attend a teen parent education program, then the pupil may petition the commissioner for permission to do so.  If the commissioner grants the pupil’s petition, then the teen parent education program shall be paid for educational services provided to the pupil in the amounts set forth in subdivision (2)(C) of this subsection (c).  Payment shall be made only if the pregnant or parenting teen is enrolled in a public school within the selected district or in a selected school, the teen parent program is approved by the state board, and the pupil is taking academic courses that are the substantial equivalent of the courses required by the selected district or selected school, as applicable, leading to a high school diploma.  Responsibility for paying the teen parent education program is as follows:

(i)  If the pupil is enrolled in a school within the selected district, then the selected district shall pay the teen parent education program pursuant to this subdivision (D).

(ii)  If the pupil is enrolled in a selected school, then the selected school shall:

(I)  Retain state payments received pursuant to subdivision (C) of this subdivision (3) and continue to receive state payments for the pupil’s enrollment; and

(II)  Pay the teen parent education program pursuant to this subdivision (D).

(c)(d)  An individual who is not a legal pupil may be enrolled in a public school in a prekindergarten program offered by or through a public school pursuant to rules adopted under section 829 of this title or in a program of essential early education offered pursuant to section 2956 of this title.

Sec. 4.  16 V.S.A. § 1121 is amended to read: 

§ 1121.  ATTENDANCE BY CHILDREN OF SCHOOL AGE REQUIRED

A person having the control of a child between the ages of six and 16 years shall cause the child to attend a public school, an approved or recognized independent school, an approved education program, or a home study program for the full number of days for which that school is held, unless the child:

* * *

Sec. 5.  APPROVED TEEN PARENT EDUCATION PROGRAMS

(a)  During the 2008–2009 academic year, the provisions of Sec. 3 of this act relating to approved teen parent education programs shall also apply to teen parent education programs that have been recognized by the department for children and families. 

(b)  The general assembly urges all teen parent education programs recognized by the department for children and families that are not also approved education programs under Title 16 to obtain that approval from the state board prior to July 1, 2009.

Sec. 6.  EFFECTIVE DATE; SUNSET

(a) This act shall take effect on July 1, 2008.

(b)  Sec. 3 shall apply to the 2008–2009 academic year only.  On July 1, 2009, the statute amended by that section shall revert to the language in effect prior to the effective date of this act.

(Committee Vote: 4-1-0)

(For House amendments, see House Journal for March 21, 2008, page 726; March 26, 2008, page 766.)

House Proposal of Amendment to Senate Proposal of Amendment

H. 94

An act relating to retail sales and taxing of specialty beers.

     The House proposes to the Senate to amend the proposal of amendment by

 striking Sec. 3 and inserting in lieu thereof the following:

Sec. 3.  STUDY OF FLAVORED MALT BEVERAGES; DEPARTMENT OF LIQUOR CONTROL

(a)  The department of liquor control shall study and identify best practices for the marketing, sale, and taxation of malt-based beverages containing other ingredients such as flavored distilled spirits, and “alcohol energy drinks,” which are malt beverages containing other ingredients such as caffeine. 

(b)  The department shall complete the study and issue a written report of its findings, conclusions, and recommendations on or before January 15, 2009.  The report shall be provided to the house committees on general, housing and military affairs, and on ways and means and the senate committees on economic development, housing and general affairs and on finance.

House Proposal of Amendment to Senate Proposal of Amendment

H. 884

An act relating to ensuring quality in prekindergarten education programs offered by or through school districts.

The House concurs in the Senate proposal of amendment when further amended as follows:

In Sec. 4, § 4001(1)(C)(ii), before the period in subdivision (III), by adding the following:

; or

(IV)  one-fifth of the total number of children in grades 1-5 who were included in the district’s average daily membership for the previous year

NOTICE CALENDAR

Favorable

H. 545

An act relating to the agency of human services.

Reported favorably by Senator Flanagan for the Committee on Government Operations.

(Committee vote: 5- 0 0)

(For House amendments, see House Journal for April 3, 2008, page 860.)

Favorable with Proposal of Amendment

H. 560

An act relating to elimination of the offender work programs board.

Reported favorably with recommendation of proposal of amendment by Senator Hartwell for the Committee on Institutions.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  28 V.S.A. § 751b(d) is amended to read:

(d)  The labor, work product, or time of an offender may be sold, contracted, or hired out by the state only:

* * *

(2)  To any state or political subdivision of a state, or to any nonprofit organization which is exempt from federal or state income taxation, subject to federal law, to the laws of the recipient state and to the rules of the department. The director of work offender programs shall annually, by January 1, submit to the chairs of the senate and house committees on institutions and to the offender work programs board a list of any such nonprofit organizations receiving goods or services in the prior and current fiscal year.  Five Three members of such board at a scheduled and warned board meeting may vote to disapprove any future sales of offender produced goods or services to any nonprofit organization and such vote shall be binding on the department.

(3)  To any private person or enterprise not involving the provision of the federally-authorized federally authorized Prison Industries Enhancement Program, provided that the offender work programs board shall first determine that the offender work product in question is not otherwise produced or available within the state. Five Three members of such board at a scheduled and warned board meeting may vote to disapprove any future sales of offender produced goods or services to any person or entity not involving the provisions of the federally-authorized federally authorized Prison Industries Enhancement Program and such vote shall be binding on the department.

* * *

Sec. 2.  28 V.S.A. § 761 is amended to read:

§ 761.  OFFENDER WORK PROGRAMS BOARD

(a)  Offender work programs board established.  An offender work programs board is established for the purpose of advising the commissioner on the use of offender labor for the public good.  The board shall base its considerations and recommendations to the commissioner on a review of plans for offender work programs pursuant to subsection (b) of this section, and on other information as it deems appropriate.

(1)  The board shall consist of nine five members, each appointed by the governor for a three-year term or until a successor is appointed, as follows:

(A)  four two representatives of customers of the products and services of offender work programs, two one of whom shall represent public sector customers, and two one of whom shall represent private nonprofit organization customers;

(B)  three two representatives of private business organizations; and

(C)  one representative of labor or labor organizations; and

(D)  one at large member.

(2)  The governor shall appoint a chair and vice chair, each of whom shall serve for one year two years or until a successor is appointed.

(3)  The board shall report to the commissioner on its activities at the request of the commissioner, and at least annually to the commissioner and to the joint fiscal office.

(4)  The board may, with the commissioner's approval of funds, hire by contract such persons the board deems necessary to provide it with administrative and staff support.

(5)  All board members shall be reimbursed from the special fund established by section 752 of this title for per diem and expenses incurred in the performance of their duties pursuant to section 1010 of Title 32.

(6)  The board shall meet at the request of the commissioner, an affected business member, a member of the general public, or a member of the board.

(b)  Review of the annual report and two-year plan. In reviewing The board shall review the annual report and two-year plan submitted by the director of offender work programs as required by subsection 751b(f) of this title, and forming its recommendations concerning them to the commissioner, the board shall:

(1)  assure itself that forward its recommendations to the commissioner concerning whether the plan is informed by thorough and accurate analysis of private business activity in the specific market segments concerned, for which purpose the board may, with the commissioners' commissioner’s approval of funds, hire by contract such persons the board deems necessary to assist it in analyzing the plan.  The board shall also may conduct public hearings to hear from members of the public or from potentially affected private businesses and labor groups; and

(2)  forward annually by January 1 to the joint fiscal office a maximum level of offender work program activity in each market segment during the term of the plan; and

(3)  make publicly known and available its recommendations for offender work programs operations.

(c)  Offender work programs expansion.  The Vermont correctional industries component of the offender work programs shall not expand into an existing market until the commissioner has done all of the following:

(1)  evaluated the impact of expansion on private sector business;

(2)  notified the offender work programs board of the proposal; and

(3)  obtained the board's written suggestions, comments and recommendations concerning the proposal.  Five Three members of the such board at a scheduled and warned board meeting may vote to disapprove any proposed expansion not involving the provisions of the federally-authorized federally authorized Prison Industries Enhancement Program, and such vote shall be binding on the department.

and that upon passage, the title of the bill shall be:  “AN ACT RELATING TO THE ROLE OF THE VERMONT OFFENDER WORK PROGRAMS BOARD”

Reported favorably by Senator Kitchel for the Committee on Appropriations.

(Committee vote: 7-0-0)

(No House amendments.)

H. 865

An act relating to Vermont milk commission.

Reported favorably with recommendation of proposal of amendment by Senator Starr for the Committee on Agriculture.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  Sec. 6(c) of No. 50 of the Acts of 2007 is amended to read:

(c)  The milk commission shall commence the rulemaking process necessary to implement the provisions of Sec. 4 of this act within 60 days of the effective date of this act.  The rule shall take effect when, by rule, legislation, or other agreement, New York and one other state in the Northeast Marketing Area, Federal Order 1, have accomplished the purpose of Sec. 4 of this act or on January 15 July 1, 2009, whichever comes first.

Sec. 2.  6 V.S.A. § 2922 is amended to read:

§ 2922.  VERMONT MILK COMMISSION; MEMBERSHIP

(a)  There shall be a Vermont milk commission, to consist of seven nine members, one member of which shall be the secretary of agriculture, food and markets.  The secretary shall be chair of the commission and serve without compensation.  A quorum shall be a majority of the commission.  The commission shall act only by an affirmative vote of at least six members.  The remaining commission members shall serve for terms of three years, except for the legislative members who shall serve for the term of their election, and be chosen as follows:

* * *

(5)  One member from the house committee on agriculture chosen by the speaker and one member from the senate committee on agriculture chosen by the president pro tempore of the senate.  For attendance at a meeting when the general assembly is not in session, these two legislative members shall be entitled to the same per diem compensation and reimbursement of necessary expenses as provided members of standing committees under 2 V.S.A. § 406.

(b)  All expenditures under this subchapter shall be paid from the receipts hereunder.

Sec. 3.  6 V.S.A. § 2923 is amended to read:

§ 2923.  ADMINISTRATIVE WORK

The Vermont agency of agriculture, food and markets shall perform the administrative work of the commission as directed by the commission.  The commission shall may reimburse the agency of agriculture, food and markets for the cost of services performed by the department agency.  The commission may enter into contracts with and employ technical experts and authorize and retain legal counsel, and other such officers, agents, and employees as are necessary to effect the purposes of this chapter, and may fix their qualifications, duties, and compensation.  The contract remuneration and employment compensation shall be paid from the Vermont milk commission fund and shall be subject to the limitations of section 2924 of this chapter.

Sec. 4.  6 V.S.A. § 2924 is amended to read:

§ 2924.  POWERS AND DUTIES; PRICING AUTHORITY; PUBLIC HEARINGS

(a)  Authority over milk prices.  The commission may establish an equitable minimum or maximum price, or both, and the manner of payments, which shall be paid producers or associations of producers by handlers, and the prices charged consumers and others for fluid milk used in dairy products by distributors or handlers.

(b)  Equitable minimum producer prices.  The commission may establish by rule order after notice and hearing an equitable minimum price to be paid to dairy producers for milk produced in Vermont on the basis of the use thereof in the various classes, grades, and forms.  Because of the need to react immediately to changing market conditions and prices, an equitable minimum price may be established by emergency rule.  Prices so established which exceed federal order prices shall be collected by the commission from the handlers for distribution to dairy producers as a blend price.  The cost of the contracts and employment pursuant to section 2923 of this title and of administering the collection and distribution of these moneys shall be covered by such moneys, not to exceed $50,000.00 $100,000.00.

* * *

(c)  Public hearings.  In order to be informed of the status of the state's dairy industry, the commission shall hold a public hearing:

(1)  At least annually.

(2)  Whenever the price paid to producers in Vermont, including the federal market order price and any over-order premiums, on average, has been reduced $0.50 or more for the previous month, except when such increase is attributable to normal seasonal changes in price by five percent or more over the last month or by 10 percent or more over the last three months.

(3)  Whenever the retail price, on average, has increased by more than $0.08 10 percent per gallon within a three-month period or $0.32 15 percent per gallon within a 12-month period.

(4)  Whenever the cost of production increases by 10 percent or more within a 12-month period.

(5)  Whenever a loss or substantial lessening of the supply of fluid dairy products of proper quality in a specified market has occurred or is likely to occur and that the public health is menaced, jeopardized, or likely to be impaired or deteriorated by the loss or substantial lessening of the supply of fluid dairy products of proper quality in a specified market.

* * *

(e)  Premiums on handlers and distributors for milk used in dairy products sold at retail in Vermont.  The commission may assess a premium on handlers and distributors for milk used in dairy products sold at retail in Vermont.  The premiums assessed and received shall be paid to the state treasury and deposited in the special fund established pursuant to section 2938 of this chapter.  The proceeds of the premium shall be distributed to dairy producers as a blend price.  Any applicable provision of subsections 2925(b)-(f) of this title shall apply to the assessment of such premiums.  In assessing these premiums, the commission shall also take into account any similar assessments made by other New England states.

Sec. 5.  6 V.S.A. § 2925 is amended to read:

§ 2925.  MINIMUM PRODUCER PRICE REGULATION

(a)  The commission may make, rescind, or amend a rule an order regulating minimum producer prices if the commission finds that the federal milk marketing order minimum price is adequate or inadequate as the case may be to ensure that the price paid to dairy producers will cover the costs of milk production and provide a reasonable economic return to dairy producers sufficient to ensure a stable milk production and distribution system in Vermont.  The commission may amend or rescind a rule without a public hearing when necessary to conform the price with an increase in the federal market order price.

(b)  Guidelines for setting prices.  In setting equitable minimum prices, the commission may investigate and ascertain what are reasonable costs and charges for producing, hauling, handling, processing and any other services performed in respect to fluid dairy products.  The board commission shall take into consideration the balance between production and consumption of milk dairy products, the costs of production and distribution, the purchasing power of the public and the price necessary to yield a reasonable return to the producer producers, handlers, and to the distributors.

* * *

(2)  Minimum retail prices should reflect the lowest price at which milk purchased from Vermont producers can be received, processed, packaged, and distributed by handlers and distributors at a just and reasonable return.

(3)  In establishing minimum producer and retail prices, the commission shall make applicable findings regarding the competitive position of Vermont producers and their costs, handler and distributor costs, and reasonable rates of return, and actual handler and distributor rates of return.

* * *

(e)  Purchases by or sales to authorized officials of any town or city charity or public welfare department or by charitable organizations approved by the city or town officials for charitable uses, and school lunch milk, shall be exempt from the price-fixing provisions of this chapter.

(f)  This chapter shall apply to milk produced outside the state subject to regulation by the state in the exercise of its constitutional police powers.  Any sale or purchase by distributors or handlers of such milk within this state at a price less than a regulated minimum price shall be unlawful.

(g)  This section shall not apply to a producer-handler with an annual production of one million pounds of milk or less.

Sec. 6.  6 V.S.A. § 2929 is amended to read:

§ 2929.  POWER TO MAKE ORDERS AND CONDUCT HEARINGS; REGULATIONS

(a)  In administering this section and sections 2675, 2725, 2726, 2921-2928, and 2931-2933 of this title chapter, the commission shall have the power to make orders hereunder, conduct hearings, subpoena, and examine under oath producers, handlers, and distributors, their books, records, documents, correspondence, and accounts, and any other person it deems necessary to carry out the purposes and intent of said sections this chapter.

(b)  Any order issued under this chapter shall only be made final after a public hearing and after publication of a proposed order for public review and comment for 30 days following the publication of the proposed order.

(c)  The commission may adopt, promulgate and enforce such reasonable rules, and regulations, and procedures as are deemed necessary to carry out the administration of the provisions of this section and sections 2675, 2725, 2726, 2921-2928 and 2931-2933 of this title chapter.

Sec. 7.  6 V.S.A. § 2931(a) is amended to read:

(a)  Within 20 days after any final order or decision has been made by the commission, any party to the action or proceeding before the commission, or any person directly affected thereby, may apply for a rehearing in respect to any matter determined in the action or proceeding, or covered or included in the order, specifying in the motion for rehearing the ground therefor.  The commission may grant such rehearing if in its opinion good reason therefore is stated in such motion.

Sec. 8.  6 V.S.A. § 2932 is amended to read:

§ 2932.  DETERMINATION OF MOTION FOR REHEARING

Upon the filing of a motion for rehearing, the commission shall within ten days, either grant or deny the motion, or suspend the order or decision complained of pending further consideration, and any order of suspension may be upon terms and conditions prescribed by the commission.

Sec. 9.  6 V.S.A. § 2938 is added to read:

§ 2938.  FUND ESTABLISHED

The Vermont milk commission fund is established in the state treasury and shall be administered by the secretary of agriculture, food and markets in accordance with the provisions of subchapter 5 of chapter 7 of Title 32, except that interest earned on the fund shall be retained in the fund.  Proceeds from this chapter shall be deposited into the fund.  The fund shall be used as necessary for the purposes of this chapter.  The treasurer shall distribute funds as directed by the commission.

Sec. 10.  6 V.S.A. § 2723a(a) is amended to read:

(a)  It shall be unlawful for any person to distribute fluid dairy products as a distributor, as defined in this chapter, without a license issued by the commissioner secretary.  The commissioner secretary shall license all distributors annually.  Application for the license shall be made to the commissioner secretary upon a form furnished by the commissioner secretary.  The application shall be accompanied by an annual license fee of $15.00 for one year or any part thereof.  The license period shall be from January 1 to December 31.

Sec. 11.  6 V.S.A. § 2981(b) is amended to read:

(b)  Each distributor handler shall pay the Vermont milk commission council each month two cents per hundredweight on all fluid milk sold for consumption within the state of Vermont.  Each distributor handler shall file a report and pay the distributor's handler’s hundredweight fee to the commission council on forms provided for that purpose, except that distributors handlers who sell less than 100 quarts of fluid milk per day may file reports and pay the prescribed hundredweight fees at the end of each three-month period.  In case the same fluid milk is handled by more than one distributor handler, the first distributor handler within the state dealing in or handling the fluid milk shall be the distributor handler within the meaning of this chapter.

Sec. 12.  REPEAL

6 V.S.A. §§ 2928, 2930, 2951, and 2987(b) are repealed.

Sec. 13.  EFFECTIVE DATE

This act shall take effect on passage.

(Committee Vote: 5-0-0)

Reported favorably by Senator Bartlett for the Committee on Appropriations.

(Committee vote: 7-0-0)

(No House amendments.)

H. 873

An act relating to the cleanup of Lake Champlain and other state waters.

Reported favorably with recommendation of proposal of amendment by Senator Lyons for the Committee on Natural Resources and Energy.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The general assembly finds that:

(1)  Vermont’s surface waters are vital assets that provide the citizens of the state clean water, recreation, and economic opportunity.

(2)  Preserving and protecting the water quality of the surface waters of Vermont is necessary to preserve the quality of life for the citizens of Vermont.

(3)  Lake Champlain does not comply with the Vermont water quality standards and has been designated by the state as impaired due to phosphorus.

(4)  The federal Clean Water Act requires Vermont to develop a plan, known as a total maximum daily load (TMDL) plan, for the cleanup of Lake Champlain.

(5)  Through adoption of the Lake Champlain TMDL and through implementation of the Clean and Clear Action Plan, Vermont has committed to the restoration of the water quality of Lake Champlain.

(6)  Since 2004, a total of nearly $65 million in state and federal funds has been made available to support the Clean and Clear Action Plan.

(7)  Despite Vermont’s financial commitment to the cleanup of Lake Champlain, the independent performance audit of the Clean and Clear Action Plan concluded that there have been no significant reductions in phosphorus loads to Lake Champlain, and there has been an actual increase in phosphorus loads during implementation of the Clean and Clear Action Plan.

(8)  The audit of the Clean and Clear Action Plan also concluded that there is a lack of coordination between programs funded under Clean and Clear, that there are no requirements for programs funded under Clean and Clear, that few of the programs funded by Clean and Clear track or measure phosphorus reduction related to the programs, that there is a general absence of any quantification of phosphorus reduction under the programs funded by Clean and Clear, and that there is a lack of a clear objective for the Clean and Clear Program as a whole.

(9)  Implementation of the Lake Champlain TMDL also lacks an accurate measure for quantifying phosphorus reduction and has failed to date to reduce phosphorus loads in Lake Champlain as a whole.

(10)  Vermont should reassert its commitment to the preservation of the water quality of the state and to the cleanup of Lake Champlain by requiring the development of a comprehensive plan to implement aggressively the Lake Champlain TMDL and to improve coordination of the Clean and Clear Action Plan.

Sec. 2.  Sec. 5 of No. 43 of the Acts of 2007 is amended to read:

Sec. 5.  10 V.S.A. chapter 47, subchapter 6 is added to read:

Subchapter 6.  Lake Champlain Water Quality

§ 1385.  THE LAKE CHAMPLAIN TOTAL MAXIMUM DAILY LOAD PLAN

(a)(1)  The secretary of natural resources shall reopen the total maximum daily load (TMDL) plan for Lake Champlain as it pertains to the waters of Vermont in order to:

(A)  Adopt a new hydrologic base year to reflect the average phosphorus load discharged to Lake Champlain between 1993 and 2004;

(B)  Allocate point source and non-point source load reductions on a subwatershed basis; and

(C)  Ensure that the total annual phosphorus discharged by all wastewater treatment facilities in the aggregate does not exceed the total phosphorus load discharged to Lake Champlain by all wastewater treatment facilities in the aggregate in 2006 and to adjust aggregate total phosphorus load allocations to Lake Champlain accordingly; and

(D)  Amend pollutant load allocations within the TMDL so as to reduce point source and non-point source load allocations in order to reasonably assure that the TMDL meets the Vermont water quality standards.

(2)  The amended TMDL shall be submitted to the U.S. Environmental Protection Agency as required by 33 U.S.C. § 303.

(b)  In addition to the requirements of subsection (a) of this section, the secretary of natural resources shall amend the Vermont-specific implementation plan of the Lake Champlain TMDL to include a strategy for identifying and targeting critical source areas for non-point source pollution in each subwatershed.  For the purposes of this subsection, “critical source area” means an area in a watershed with high potential to release phosphorus to surface or subsurface runoff to waters of the state.

(c)  In amending the TMDL for Lake Champlain under subsection (a) of this section and in amending the Vermont-specific implementation plan of the Lake Champlain TMDL under subsection (b) of this section section 1386 of this title, the secretary of natural resources shall comply with the public participation requirements of 40 C.F.R. § 130.7(c)(1)(ii). 

§ 1386.  IMPLEMENTATION PLAN FOR THE LAKE CHAMPLAIN TOTAL MAXIMUM DAILY LOAD PLAN

(a)  On or before January 15, 2010, the secretary of natural resources shall issue a revised Vermont-specific implementation plan for the Lake Champlain TMDL.  Beginning January 15, 2013, and every four years thereafter, the secretary of natural resources shall amend and update the Vermont-specific implementation plan for the Lake Champlain TMDL.  Prior to issuing, amending, or updating the implementation plan, the secretary shall consult with the agency of agriculture, food and markets, all statewide environmental organizations that express an interest in the plan, the Vermont League of Cities and Towns, all business organizations that express an interest in the plan, the University of Vermont Rubenstein ecosystem science laboratory, and other interested parties.  The implementation plan shall include a comprehensive strategy for implementing the Lake Champlain total maximum daily load (TMDL) plan and for the remediation of Lake Champlain.  The implementation plan shall be issued as a document separate from the Lake Champlain TMDL.  The implementation plan shall:

(1)  Include or reference the elements set forth in 40 C.F.R. § 130.6(c) for water quality management plans;

(2)  Comply with the requirements of section 1258 of this title and administer a permit program to manage discharges to Lake Champlain consistent with the federal Clean Water Act;

(3)  Develop a process for identifying critical source areas for non-point source pollution in each subwatershed.  As used in this subdivision, “critical source area” means an area in a watershed with high potential for the release, discharge, or runoff of phosphorus to the waters of the state;

(4)  Develop site-specific plans to reduce point source and non-point source load discharges in critical source areas identified under subdivision (3) of this subsection;

(5)  Develop a method for identifying and prioritizing on public and private land pollution control projects with the potential to provide the greatest water quality benefits to Lake Champlain;

(6)  Develop a method of accounting for changes in phosphorus loading to Lake Champlain due to implementation of the TMDL and other factors;

(7)  Develop phosphorus reduction targets related to phosphorus reduction for each water quality program and for each segment of Lake Champlain, including benchmarks for phosphorus reduction that shall be achieved.  The implementation plan shall explain the methodology used to develop phosphorus reduction targets under this subdivision;

(8)  Establish a method for the coordination and collaboration of water quality programs within the state;

(9)  Develop a method for offering incentives or disincentives to wastewater treatment plants for maintaining the 2006 levels of phosphorus discharge to Lake Champlain;

(10)  Develop a method of offering incentives or disincentives for reducing the phosphorus contribution of stormwater discharges within the Lake Champlain basin.

(b)  In amending the Vermont-specific implementation plan of the Lake Champlain TMDL under this section, the secretary of natural resources shall comply with the public participation requirements of 40 C.F.R. § 130.7(c)(1)(ii). 

(c)  Beginning January 15, 2010, and every four years thereafter, the secretary shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources, and the house and senate committees on agriculture with the amendments or revisions to the implementation plan for the Lake Champlain TMDL required by subsection (a) of this section.  Prior to issuing the report required by this subsection, the secretary shall hold at least three public hearings in the Lake Champlain watershed to describe the amendments and revisions to the implementation plan for the Lake Champlain TMDL.  The secretary shall prepare a responsiveness summary for each public hearing.  The report required under this subsection in January 15, 2010 shall summarize the contents of and the process leading to the adoption of the implementation plan.   Beginning January 15, 2014, the report required by this subsection shall include:

(1)  An assessment of the implementation plan for the Lake Champlain TMDL based on available data, including an evaluation of the efficacy of the implementation plan;

(2)  An assessment of the hydrologic base period used to determine the phosphorus loading capacities for the Lake Champlain TMDL based on available data, including an evaluation of the adequacy of the hydrologic base period for the TMDL;

(3)  Recommendations, if any, for amending the implementation plan or reopening the Lake Champlain TMDL.

(d)  Beginning February 1, 2009 and annually thereafter, the secretary shall submit to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture a clean and clear program summary reporting on activities and measures of progress for each program supported by funding under the Clean and Clear Action Plan. 

Sec. 3.  Sec. 4 of No. 43 of the Acts of 2007 is amended to read:

Sec. 4.  AGENCY OF NATURAL RESOURCES REPORT ON IMPLEMENTATION OF STORMWATER TMDLS

(a)  Beginning January 15, 2008, and every two years thereafter, the agency of natural resources shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture regarding agency progress in establishing and implementing the total maximum daily load (TMDL) plan for Lake Champlain.  Beginning January 15, 2009, and every two years thereafter, the agency of natural resources shall report to the house committee on fish, wildlife and water resources and the senate committee on natural resources and energy regarding agency progress in establishing and implementing the TMDLs for the stormwater-impaired waters of the state.  Prior to issuing the reports required under this section, the agency of natural resources shall hold a public hearing in the Lake Champlain watershed and each watershed of a stormwater-impaired water for which a permit has been issued implementing a total maximum daily load.  The reports required by this section shall include:

(1)  An assessment of the implementation plan for the TMDL based on available data, including an evaluation of the efficacy of the implementation plan;

(2)  An assessment of the hydrologic targets of the TMDL based on available data, including an evaluation of the adequacy of the hydrologic targets of the TMDL;

(3)  Recommendations, if any, for amending an implementation plan or reopening a TMDL.

* * *

Sec. 4.  AGENCY OF NATURAL RESOURCES STORMWATER TMDL SCHEDULE

(a)  On or before October 1, 2008, the secretary of natural resources shall submit to each municipality in which a stormwater impaired water is located and to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture a schedule for the issuance of the implementation plans for the total maximum daily load (TMDL) plans that the U.S. Environmental Protection Agency (EPA) has approved for the stormwater-impaired waters of the state.  The schedule shall include the proposed dates on which the implementation plan for each EPA‑approved stormwater TMDL will be issued and a summary of the potential alternatives for each implementation plan, including the funding options for each alternative.

(b)  The report required under subsection (a) of this section shall also include a schedule for the submission of the remaining stormwater TMDLs to EPA for approval.

Sec. 5.  10 V.S.A. § 1264 is amended to read:

§ 1264.  STORMWATER MANAGEMENT

* * *

(e)(1)  Except as otherwise may be provided in subsection (f) of this section, the secretary shall, for new stormwater discharges, require a permit for discharge of, regulated stormwater runoff consistent with, at a minimum, the 2002 stormwater management manual.  The secretary may issue, condition, modify, revoke, or deny discharge permits for regulated stormwater runoff, as necessary to assure achievement of the goals of the program and compliance with state law and the federal Clean Water Act.  The permit shall specify the use of best management practices to control regulated stormwater runoff.  The permit shall require as a condition of approval, proper operation, and maintenance of any stormwater management facility and submittal by the permittee of an annual inspection report on the operation, maintenance and condition of the stormwater management system.  The permit shall contain additional conditions, requirements, and restrictions as the secretary deems necessary to achieve and maintain compliance with the water quality standards, including but not limited to requirements concerning recording, reporting, and monitoring the effects on receiving waters due to operation and maintenance of stormwater management facilities.

* * *

(i)  A residential subdivision may transfer a pretransition stormwater discharge permit or a stormwater discharge permit implementing a total maximum daily load plan to a municipality, provided that the municipality assumes responsibility for the permitting of the stormwater system that serves the residential subdivision.  For the purposes of this section:

(1)  “Pretransition stormwater discharge permit” means any permit issued by the secretary of natural resources pursuant to this section on or before June 30, 2004 for a discharge of stormwater.

(2)  “Residential subdivision” means land identified and demarcated by recorded plat or other device that a municipality has authorized to be used primarily for residential construction.

Sec. 6.  27 V.S.A. § 614 is added to read:

§ 614.  TRANSFER OF STORMWATER DISCHARGE PERMITS TO A MUNICIPALITY

(a)  The failure of the residential subdivision to obtain, renew, or comply with the terms of a pretransition stormwater discharge permit shall not create an encumbrance on record title to real property within the residential subdivision or affect marketability of title of real property within the residential subdivision, provided that:

(1)  The residential subdivision transfers a pretransition stormwater permit to a municipality according to the requirements of subsection 1264(i) of Title 10;

(2)  Property owners within the residential subdivision record in the land records:

(A)  The deed or other legal document of conveyance of the stormwater system to the utility; and

(B)  A notice indicating that the stormwater utility has assumed responsibility for the permitting of the stormwater system located in the residential subdivision.

(b)  The definitions found in section 1264 of Title 10 and subsection 613(a) of this title apply to this section unless otherwise indicated.  For the purposes of this section, “residential subdivision” means land identified and demarcated by recorded plat or other device that a municipality has authorized to be used primarily for residential construction.

Sec. 7.  24 V.S.A. § 4753 is amended to read:

§ 4753.  REVOLVING LOAN FUNDS; AUTHORITY TO SPEND; REPORT

(a)  There is hereby established a series of special funds to be known as:

(1)  The Vermont environmental protection agency (EPA) pollution control revolving fund which shall be used to provide loans to municipalities, state agencies, and the Vermont housing finance agency, for planning sewage systems and sewage treatment or disposal plants as defined in subdivisions 3501(6) and 3601(3) of this title, for constructing publicly-owned publicly owned sewage systems and sewage treatment or disposal plants as defined in subdivisions 3501(6) and 3601(3) of this title, for planning or construction of certain privately-owned privately owned wastewater systems, and for implementing related management programs.

(2)  The Vermont pollution control revolving fund which shall be used to provide loans to municipalities, state agencies, and the Vermont housing finance agency, for planning pollution control facilities, for constructing publicly-owned publicly owned pollution control facilities, and for constructing certain privately-owned privately owned wastewater systems and potable water supply systems.

* * *

(8)  The Vermont stormwater management fund which shall be used to provide grants and loans to municipalities, pursuant to rules proposed by the agency of natural resources and enacted by the general assembly, for planning, designing, engineering, constructing, repairing, or improving infrastructure necessary to protect the waters of the state from the adverse impacts of untreated stormwater runoff.  Funds may also be used to plan and establish a process for managing stormwater within or among municipalities.

* * *

(d)  Funds from the Vermont environmental protection agency pollution control fund and the Vermont pollution control revolving fund, established by subdivisions (a)(1) and (2) of this section, may be awarded for:

(1)  the refurbishment or construction of a new or an enlarged wastewater treatment plant with a resulting total capacity of 250,000 gallons or more per day in accordance with the provisions of this chapter and section 1626a of Title 10; or

(2)  the construction of stormwater management facilities as specifically or generally described in Vermont’s nonpoint source management plan, and which are necessary to remedy or prevent pollution of waters of the state, provided, in any year in which the federal grant for the fund established in subdivision (a)(1) of this section does not exceed the amount available to the state in the 2002 federal appropriation, no more than 10 30 percent of that year’s federal and state appropriations to that fund shall be used for the purpose outlined in this subdivision.

* * *

Sec. 8.  10 V.S.A. § 1278 is amended to read:

§ 1278.  OPERATION, MANAGEMENT, AND EMERGENCY RESPONSE PLANS FOR POLLUTION ABATEMENT FACILITIES

(a)  Findings.  The general assembly finds that the state shall protect Vermont’s lakes, rivers, and streams from pollution by implementing programs to prevent sewage spills to Vermont waters and by requiring emergency planning to limit the damage from spills which do occur.

(b)  Planning requirement.  Effective July 1, 2007, the secretary of natural resources shall, upon renewal as part of a permit issued under section 1263 of this title, require a pollution abatement facility, as that term is defined in section 1571 of this title, to prepare and implement an operation, management, and emergency response plan for those portions of each pollution abatement facility that include the treatment facility, the sewage pumping stations, and the sewer line stream crossing. 

(c)  As of July 1, 2010, the secretary of natural resources, as part of a permit issued under section 1263 of this title, shall require a pollution abatement facility, as that term is defined in section 1571 of this title, to prepare and implement an operation, management, and emergency response plan for each permitted facility that portion of each pollution abatement facility that includes the sewage collection systems.  The requirement to develop a plan under this subsection shall be included in a permit issued under section 1263 of this title, and a plan developed under this subsection shall be subject to public review and inspection.

(d)  An operation, management, and emergency response plan shall include the following:

(1)  Identification of those elements of the facility, including collection systems that are determined to be prone to failure based on installation, age, design, or other relevant factors.

(2)  Identification of those elements of the facility identified under subdivision (1) of this subsection which, if one or more failed, would result in a significant release of untreated or partially treated sewage to surface waters of the state.

(3)  A requirement that the elements identified in subdivision (2) of this subsection shall be inspected in accordance with a schedule approved by the secretary of natural resources.

(4)  An emergency contingency plan to reduce the volume of a detected spill and to mitigate the effect of such a spill on public health and the environment.

(c)(e)  The secretary of natural resources shall post publicly notice of an illegal discharge that may pose a threat to human health or the environment on its website within 24 hours of the agency’s receipt of notification of the discharge.

Sec. 9.  10 V.S.A. § 6602(2) is amended to read:

(2)  “Solid waste” means any discarded garbage, refuse, septage, sludge from a waste treatment plant, water supply plant, or pollution control facility and other discarded material including solid, liquid, semi-solid, or contained gaseous materials resulting from industrial, commercial, mining, or agricultural operations and from community activities but does not include animal manure and absorbent bedding used for soil enrichment; high carbon bulking agents used in composting; or solid or dissolved materials in industrial discharges which are point sources subject to permits under the Water Pollution Control Act, chapter 47 of this title.

Sec. 10.  COMPOSTING FACILITY REGULATORY REVIEW

(a)  The general assembly finds that composting is an important management technique necessary for the existing and future management of solid waste in Vermont and for the management of manure and agricultural wastes on farms.  The agency of natural resources, the natural resources board, and the agency of agriculture, food, and markets should work together to protect the environment, assure the continued viability of composting facilities in the state, assure continued composting on farms, and assure that the goals of this section are accomplished.

(b)  Notwithstanding 1 V.S.A. §§ 213 and 214, until July 1, 2010, no composting facility holding a permit under 10 V.S.A. chapter 159 issued after January 1, 2001 shall be required to obtain a permit or a permit amendment under 10 V.S.A. chapter 151, except that a composting facility shall be required to obtain a permit under 10 V.S.A. chapter 151 if:

(1)  development at the composting facility exceeds the scope of the composting facility’s certification under 10 V.S.A. chapter 159, and the development is not authorized by the secretary of natural resources under 10 V.S.A. chapter 159; or

(2)  there is a substantial change at the composting facility, as it exists on the effective date of this act, that would require a permit under 10 V.S.A. chapter 151, and the change is not otherwise authorized by the secretary of natural resources under chapter 10 V.S.A. chapter 159.

(c)  A composting facility that holds a certification by the agency of natural resources under 10 V.S.A. chapter 159 issued after January 1, 2001 shall be allowed to continue operations until July 1, 2010 under the terms of the composting facility’s existing certification, an amendment to the composting facility’s certification, or an interim certification.  Until July 1, 2010, such a composting facility shall not be subject to any requirement of an order under 10 V.S.A. chapter 159, 201, or 211 issued before the effective date of this act that requires the composting facility to obtain a permit under 10 V.S.A. chapter 151 or that is contrary to an authorization, certification, or requirement of the secretary under 10 V.S.A. chapter 159.

(d)  For the purposes of this section, “composting facility” shall mean a facility engaged in the controlled biological decomposition of organic matter through active management to produce, use, or sell a stable humus-rich material but shall not mean sewage or septage or materials derived from sewage or septage.

(e)  On or before July 1, 2008, the agency of natural resources shall convene a study committee to review the existing regulatory requirements for composting in the state and to recommend amendments or improvements to the existing rules governing the construction, alteration, or operation of a composting facility.  The committee shall consist of:

(1)  the secretary of natural resources or his or her designee;

(2)  the secretary of agriculture, food and markets or his or her designee;

(3)  two representatives of the composting association of Vermont, appointed by the association;

(4)  a representative of the Vermont League of Cities and Towns, appointed by the league;

(5)  a representative of an interested environmental group, appointed by the senate committee on committees;

(6)  a representative from the Vermont association of solid waste managers, appointed by the association;

(7)  the state historic preservation officer or his or her designee; and

(8)  a representative of the natural resources board, appointed by the chair of the board.

(f)  The committee shall issue a final report of its findings to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture by January 15, 2009.  The report shall include:

(1)  Recommended rules for the construction, alteration, or operation of a composting facility;

(2)  Recommendations for increasing public awareness of the benefits of composting;

(3)  Recommendations for increasing awareness within the composting community and those interested in initiating a composting operation of the existing regulations governing composting; and

(4)  The contact information of an individual or department at the agency of natural resources that can assist interested persons in understanding and complying with the agency’s regulations for composting.

Sec. 11.  AGENCY OF NATURAL RESOURCES REPORT ON MONITORING OF NUTRIENTS IN WASTEWATER TREATMENT PLANT EFFLUENT

On or before January 15, 2009, the secretary of natural resources shall report to the senate committee on natural resources and energy, the house committee on fish, wildlife, and water resources, and the senate and house committees on agriculture with the secretary’s proposal for monitoring total nitrogen and phosphorus discharged in effluent from wastewater treatment plants in Vermont.

Sec. 12.  STORMWATER PILOT PROJECT

The secretary of natural resources shall establish a pilot project to test stormwater control best management practices that could be utilized to reduce phosphorus in stormwater discharges and that could be required under 10 V.S.A. §§ 1264 and 1264a.  On or before January 15, 2010, the secretary of natural resources shall report to the senate committee on natural resources and energy and the house committee on fish, wildlife and water resources with the results of the pilot project and recommended best management practices for reducing phosphorus from stormwater discharges.

Sec. 13.  SUNSET

Sec. 10 (composting facility regulatory review) of this act shall be repealed on July 1, 2010.  A composting facility that has been operated at any time between June 1, 1970 and July 1, 2010 and which constitutes a development pursuant to 10 V.S.A. § 6001(3)(A), including a composting facility where Act 250 jurisdiction has been formally determined, shall be subject to jurisdiction under 10 V.S.A. chapter 151 as of July 1, 2010.

Sec. 14.  EFFECTIVE DATE

(a)  This section and Secs. 1 (finding), 3 (ANR report on TMDLs), 4 (ANR stormwater TMDL schedule), 5 (transfer of pretransition stormwater permits to a municipality), 6 (transfer of pretransition stormwater permits), 7 (pollution control revolving loan fund), 8 (operation, management, and emergency response plans), 9 (definition of solid waste), 11 (ANR report on nutrient discharge monitoring), 12 (ANR stormwater pilot project), and 13 (sunset of composting facility review) of this act and 10 V.S.A. § 1386 (Lake Champlain TMDL implementation plan) shall take effect upon passage.

(b)  10 V.S.A. § 1385 (reopening of Lake Champlain TMDL) shall take effect July 1, 2013.

(c)  Sec. 10 (composting facility regulatory review) of this act shall take effect upon passage and shall be retroactive to June 1, 1970.

(Committee Vote: 5-0-0)

Reported favorably with recommendation of proposal of amendment by Senator Bartlett for the Committee on Appropriations.

The Committee recommends that the Senate propose to the House to amend the bill as recommended by the Committee on Natural Resources and Energy with the following amendments thereto:

First:  In Sec. 2, by striking 10 V.S.A. § 1386(c) in its entirety and inserting in lieu thereof the following:

(c)  On or before January 15, 2010, the secretary of natural resources shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources, and the house and senate committees on agriculture with a summary of the contents of and the process leading to the adoption under subsection (a) of this section of the implementation plan for the Lake Champlain TMDL.  On or before January 15, 2013, and every four years thereafter, the secretary shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources, and the house and senate committees on agriculture with the amendments or revisions to the implementation plan for the Lake Champlain TMDL required by subsection (a) of this section.  Prior to issuing a report required by this subsection, the secretary shall hold at least three public hearings in the Lake Champlain watershed to describe the amendments and revisions to the implementation plan for the Lake Champlain TMDL.  The secretary shall prepare a responsiveness summary for each public hearing.  Beginning January 15, 2013, a report required by this subsection shall include:

(1)  An assessment of the implementation plan for the Lake Champlain TMDL based on available data, including an evaluation of the efficacy of the implementation plan;

(2)  An assessment of the hydrologic base period used to determine the phosphorus-loading capacities for the Lake Champlain TMDL based on available data, including an evaluation of the adequacy of the hydrologic base period for the TMDL;

(3)  Recommendations, if any, for amending the implementation plan or reopening the Lake Champlain TMDL.

Second:  By striking Sec. 11 (ANR report on nutrient monitoring at wastewater treatment plants) and inserting in lieu thereof the following

Sec. 11.  ANR REPORT ON PHOSPHORUS REDUCTION INCENTIVES

On or before February 1, 2009, the agency of natural resources, as part of the report required under 10 V.S.A. § 1386(d), shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on appropriations with a status report on the development of incentives or disincentives for wastewater treatment plants to maintain the 2006 levels of phosphorus discharge to Lake Champlain.

Third:  By striking Sec. 12 (ANR stormwater pilot project) in its entirety

Fourth:  In Sec. 14, by striking subsection (a) in its entirety and inserting in lieu thereof the following:

(a)  This section and Secs. 1 (finding), 3 (ANR report on TMDLs), 4 (ANR stormwater TMDL schedule), 5 (transfer of pretransition stormwater permits to a municipality), 6 (transfer of pretransition stormwater permits), 7 (pollution control revolving loan fund), 8 (operation, management, and emergency response plans), 9 (definition of solid waste), 11 (ANR report on phosphorus incentives and disincentives), and 13 (sunset of composting facility review) of this act and 10 V.S.A. § 1386 (Lake Champlain TMDL implementation plan) shall take effect upon passage.

and by renumbering all of the sections of the bill to be numerically correct (including internal references)

(Committee Vote: 7-0-0)

(No House amendments)

H. 879

An act relating to the repeal of unnecessary, duplicative, and burdensome reports, the improved timeliness and efficiency of special education audits; and the simplification of union school district formation.

Reported favorably with recommendation of proposal of amendment by Senator Doyle for the Committee on Education.

The Committee recommends that the Senate propose to the House to amend the bill as follows:

First:  In Sec. 1, by striking out subdivisions (5) (superintendent’s annual report on hearing and vision tests), (6) (superintendent’s annual report on educational support services), and (8) (commissioner’s report on status of school choice)

Second:  In Sec. 1, by adding 12 new subdivisions to be subdivisions (10) through (21) to read as follows:

(10)  3 V.S.A. § 3026(d) (annual report from the secretary of human services, commissioner of education, and president of the university of Vermont to the legislature and governor regarding partnerships for children, families, and individuals).

(11)  16 V.S.A. § 1049a(d) (commissioner’s annual report to the legislature regarding the high school completion program).

(12)  16 V.S.A. § 2177(d) (the Vermont state colleges’ biennial report to the legislature regarding its activities).

(13)  16 V.S.A. § 2281(c) (the university of Vermont president’s biennial report to the legislature regarding the activities of the university and the state agricultural college).

(14)  16 V.S.A. § 2322 (the state agricultural college dean’s biennial submission of the estimated budget for the college’s research station and a statement of federal and other available funding).

(15)  16 V.S.A. § 2536 (the university of Vermont and state agricultural college trustees’ annual report to the legislature and the governor concerning the work of its units, including receipts, disbursements, resources, and liabilities).

(16)  16 V.S.A. § 2856(g) (adjutant general’s annual report to the legislature regarding educational loan programs for national guard members).

(17)  Sec. 90 of No. 60 of the Acts of 1997 as amended by Sec. 33 of No. 49 of the Acts 1999 (repeal of legislative oversight committee on restructuring education and assumption of the committee’s duties by standing legislative committees).

(18)  Sec. 2(b)(7) of No. 125 of the Acts of the 1999 Adj. Sess. (2000) (annual report of the commissioners of health, of buildings and general services, and of education to the house and senate committees on education regarding indoor air and hazardous exposure in Vermont schools and regarding the number of school districts that have adopted related programs).

(19)  Sec. 97(c) of No. 152 of the Acts of the 1999 Adj. Sess. (2000) (annual report of the secretary of human services and the commissioner of education to the legislature regarding the state team for children, families, and individuals and regional and community partnerships).

(20)  Sec. 71(f) of No. 68 of the Acts of the 2002 Adj. Sess. (2003) as amended by Sec. 1 of No. 4 of the Acts of 2005 of No. 4 of the Acts of 2005 (annual report of the council on education governance to the legislature regarding its progress and any recommendations for legislation necessary to comply with the No Child Left Behind Act).

(21)  Sec. 168a(c) of No. 71 of the Acts of 2005 (commissioner issues a request for proposals, chooses grant recipients, determines the amounts to be awarded to each recipient, and monitors the progress of each grant recipient for fiscal year 2006; annual report by the council on education governance to the legislature regarding its progress and recommendations for legislative change).

Third:  By adding 11 new sections to be Secs. 3a through 3k to read as follows:

Sec. 3a.  16 V.S.A. § 2177(b) is amended to read:

(b)  The books and accounts of the corporation shall be audited annually as of June 30 under the supervision of the auditor of accounts who shall publish the audit report in detail

Sec. 3b.  16 V.S.A. § 2281(a) is amended to read:

(a)  The books and accounts of the University of Vermont and State Agricultural College shall be audited annually as of June 30, under the supervision of the auditor of accounts. The report of such audit shall be published in detail by the auditor of accounts. 

Sec. 3c.  16 V.S.A. § 2835 is amended to read:

§ 2835.  CONTROLS, AND AUDITS, AND REPORTS

Control of funds appropriated and all procedures incident to the carrying out of the purposes of this chapter shall be vested in the board.  The books of account of the corporation shall be audited annually under the direction of the auditor of accounts and a report filed with the secretary of administration not later than November 1 each year.  Biennially the board shall report to the legislature on its activities during the preceding biennium. 

Sec. 3d.  16 V.S.A. § 2879f is amended to read:

§ 2879f.  ANNUAL REPORTS REVIEW

The corporation shall review, on an annual basis, the financial status of the program and the participation rate in the program.  The corporation shall also review the continued viability of the program and the administration of the program by the corporation. The corporation shall report by January 15th the findings to the speaker of the house, the president pro tem of the senate, and to the house and senate committees on education. 

Sec. 3e.  24 V.S.A. § 5261 is amended to read:

§ 5261.  ANNUAL REPORT; AUDIT

On or before March 31 of each year, the authority shall report on its activities for the preceding calendar year to the governor and to the general assembly.  Each report shall set forth a complete operating and financial statement covering its operations during the year.  The authority shall cause an audit of its books and accounts to be made at least once in each year by certified public accountants and the cost thereof shall be considered an expense of the authority and a copy thereof shall be filed with the state treasurer. 

Sec. 3f.  Sec. 7 of No. 43 of the Acts of 2005 is amended to read:

Sec. 7.  UNIVERSITY OF VERMONT

The sum of $1,700,000 is appropriated to the department of buildings and general services for the University of Vermont to assist with construction, renovation, and major facility maintenance to the university campus that advances the mission of the university to prepare the students to lead productive lives and to interpret and share knowledge for the benefit of Vermont and for society as a whole.  The university shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 7                                                        $1,700,000)

Sec. 3g.  Sec. 8 of No. 147 of the Acts of the 2005 Adj. Sess. (2006) is amended to read:

Sec. 8.  UNIVERSITY OF VERMONT

The sum of $1,800,000 is appropriated to the University of Vermont to assist with construction of the plant sciences building and with major facility maintenance to the university campus.  The university shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 8                                                        $1,800,000)

Sec. 3h.  Sec. 9 of No. 147 of the Acts of the 2005 Adj. Sess. (2006) is amended to read:

Sec. 9.  VERMONT STATE COLLEGES

The sum of $1,800,000 is appropriated to the Vermont state colleges for major facility maintenance.  The state colleges shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 9                                                        $1,800,000)

Sec. 3i.  Sec. 4(c) of No. 192 of the Acts of the 2005 Adj. Sess. (2006) is amended to read: 

(c)  On or before January 15, 2007, and on or before January 15 for five years thereafter, the task force shall report on its activities during the preceding year to the house and senate committees on education and judiciary.  The task force shall cease to exist after it files the report due on January 15, 2012.

Sec. 3j.  Sec. 9 of No. 52 of the Acts of 2007 is amended to read:

Sec. 9.  UNIVERSITY OF VERMONT

The sum of $1,600,000 is appropriated to the University of Vermont for construction, renovation, or maintenance projects.  The university shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 9                                               $ 1,600,000)

Sec. 3k.  Sec. 10 of No. 52 of the Acts of 2007 is amended to read:

Sec. 10.  VERMONT STATE COLLEGES

The sum of $1,600,000 is appropriated to the Vermont State Colleges for major facility maintenance.  The state colleges shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 10                                             $ 1,600,000)

Fourth:  By striking out Secs. 5 through 20 in their entirety

(Committee Vote: 5-0-0)

Reported favorably by Senator Bartlett for the Committee on Appropriations.

(Committee vote: 7-0-0)

(No House amendments.)

H. 885

An act relating to developing consistent measurement standards for economic growth.

Reported favorably with recommendation of proposal of amendment by Senator Miller for the Committee on Economic Development, Housing and General Affairs.

The Committee recommends that the Senate propose to the House to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Part I

*** Consistent Measurement Standards for Economic Growth ***

Sec. 1.  FINDINGS; INTENT; BENCHMARKING

(a)  The general assembly finds:

(1)  A review of several rankings for Vermont’s competitiveness and their differentiation shows very disparate results.  For example, the Beacon Hill Institute ranked Vermont twelfth and the American Legislative Exchange Council (ALEC) ranked Vermont fiftieth on their economic development competitiveness index.   Each outside ranking entity chose different factors.

(2)  Within Vermont, our measurement techniques show variations.  Job and employment data in the state suffer from definitional disparities which create conflicts for those trying to use the data.  The newly established and recently released “unified economic development budget” would be improved by the consistent use of benchmarking by state agencies.  Testimony on this study before the general assembly raised concern over state agency benchmarking because of the differing data issues and measuring approaches that affect their use by state government in Vermont.

(b)  The general assembly has a responsibility for the promotion of economic development in Vermont that builds on the unique strengths and challenges of doing business in Vermont.  The general assembly is interested in what criteria it should use to evaluate the effectiveness of economic development efforts.  Many states have structures and methods for measuring the effectiveness of economic development efforts.

(c)  The commission on the future of economic development is charged with benchmarking and measuring economic development.

(d)  Therefore, it is the intent of the general assembly in adopting this act to establish a logical structure and coherent and uniform set of benchmarks for economic development in this state.

Sec. 2.  10 V.S.A. § 1(h) is added to read:

(h)  The commission on the future of economic development with its staff,  using as a resource the joint fiscal office and legislative council staff, shall:

(1)  review the techniques and products of evaluations of economic development utilized by other states;

(2)  develop goals for Vermont benchmarks that build on the unique strengths and challenges of conducting business in Vermont;

(3)  identify a cohort of relevant comparables, considering both domestic and international examples; and

(4)  evaluate Vermont’s economic development benchmarking.

Sec. 3.  LABOR MARKET MEASURES

The department of labor shall collaborate with the joint fiscal office and the agency of commerce and community development to develop a mutually acceptable set of employment measures and a means of communicating them to the General Assembly.

Sec. 4.  REPEAL

Sec. 225 of No. 65 of the Acts of 2007 is repealed.

Sec. 5.  RESERVED

Part II

*** Workforce Education and Training ***

Sec. 6.  10 V.S.A. § 543 is amended to read:

§ 543.  WORKFORCE EDUCATION AND TRAINING FUND; GRANT PROGRAMS

* * *

(b)  Purposes.  The fund shall be used exclusively for the following two purposes:

* * *

(2)  internships to provide work-based learning opportunities with Vermont employers for students from Vermont colleges, public and private high schools, regional technical centers, and the Community High School of Vermont, and for students who are Vermont residents attending college, high school, technical or vocational schools out of state.

* * *

(d)  Eligible Activities.  Awards from the fund shall be made to employers and entities that offer programs that require collaboration between employees and businesses, including private, public, and nonprofit entities, institutions of higher education, technical centers, and workforce development programs.  Funding shall be for training programs and student internship programs that offer education, training, apprenticeship, mentoring, or work-based learning activities, or any combination; that employ innovative intensive student‑oriented competency-based or collaborative approaches to workforce development; and that link workforce education and economic development strategies.  Training programs or projects that demonstrate actual increased income and economic opportunity for employees and employers may be funded for more than one year.  Student internships and training programs that involve the same employer may be funded multiple times, provided that new students participate.

* * *

(f)  Awards.  Based on guidelines set by the council, the commissioner of labor shall make awards to the following:

(1)  Training Programs.  Public, private, and nonprofit entities for existing or new innovative training programs.  There shall be a preference for programs that include training for newly created or vacant positions.  Awards may be made to programs that retrain incumbent workers.  Awards under this subdivision shall be made to programs or projects that do all the following:

* * *

(G)  demonstrate an integrated connection between training and employment including a commitment by participating employers to hire those who successfully complete a training program.   If employment is not guaranteed at the successful completion of the training, the applicant must demonstrate employer involvement and that the training is likely to lead to employment in fields in which there is demand for jobs.

(H) The department shall ensure there are resources available in each quarter of the fiscal year.

* * *

* * Regional Technical Centers; Assistant Directors for Adult Education *

Sec. 7.  16 V.S.A. § 1541(c) is amended to read:

(c)  In consultation with its regional advisory board, a school board which operates a regional technical center shall:

* * *

(4)  employ and, as need requires, dismiss an adult services’ coordinator assistant director for adult education and, subject to section 243 of this title, a director of technical education;

Sec. 8.  16 V.S.A. § 1565 is amended to read:

§ 1565.  SALARY ASSISTANCE

(a)  The state board shall reimburse a school district operating a technical center for a portion of its cost in paying the salary of the following persons:

(1)  the director of technical education;

(2)  a person whose principal duty is to provide guidance services for technical students;

(3)  a person whose principal duty is to find job training opportunities for students during the time they are enrolled at the technical center;

(4)  an adult services coordinator assistant director for adult education;

(5)  an assistant director of technical education, if the technical center has full-time equivalent enrollment of at least 150 and the sending school population is at least 30 percent of the technical center’s total full-time equivalent enrollment.

(b)  Assistance under this section shall be determined by a formula and standards established by rule of the state board.  The formula and those standards:

(1)  shall provide different levels of support for different positions as follows:

(A)  Directors and guidance coordinators’ salary assistance shall be 50 percent of the state average salary and benefits for each position, or 50 percent of the actual salary and benefits for each individual, whichever is less;

(B)  Assistant Except for assistant directors for adult education, assistant directors, if the district is eligible, and co-op teachers’ salary assistance shall be 35 percent of the state average salary and benefits for each position, or 35 percent of the actual salary and benefits for each individual, whichever is less;

(C)  Adult service coordinators’ salary Salary assistance for assistant directors for adult education shall be up to 50 percent of actual salaries and benefits the state average salary and benefits paid to full-time assistant directors for adult education; salary assistance shall be prorated for part-time assistant directors.  Salary assistance under this subdivision (1)(C) shall not be paid from the education fund to the extent that the obligation is not fully funded from the general fund.  State general fund assistance shall be divided so that each district employing an assistant director receives the same base amount of state salary support. The base support shall be pro-rated for part-time assistant directors.  Payment under this subsection does not preclude a district from using other state and federal grants to supplement the actual salaries and benefits of adult service coordinators assistant directors for adult education.

Sec. 9.  INTENT; TRANSITIONAL PROVISION

(a) Nothing in Secs. 7 or 8 of this act shall be construed to prohibit a technical center from hiring both an assistant director of technical education and an assistant director for adult education or to reduce salary assistance for other technical center positions.

(b) Any person employed as an adult service coordinator on the effective date of this act shall assume the position, title, benefits and responsibilities of assistant director of adult education.

Sec. 10.  ADULT TECHNICAL EDUCATION;  workforce education and training; REPORT

(a)  The general assembly finds:

(1)  There are financial disincentives for secondary schools to encourage students to consider attending a technical education center as a viable educational option.

(2)  Adult enrollment in technical centers offered during the day is permitted on a “space-available” basis.

(3)  The costs of an adult attending a technical education center is paid by the district of residence if the adult does not have a high school diploma.  An adult who has a diploma can be charged up to 40% of the cost.

(4)  Financial support for technical education programs is limited to those students enrolled on October 15 and March 15.  There is no funding for summer programs.

(5)  The regional technical centers offer very few programs outside of the traditional school day and academic year.  A secondary student may attend the classes offered in the late afternoon or evening, but funding through the school district of residence is not available for these courses if the student also attends other secondary education classes during the school day.

(6)  Because state funding is based on a three-year average enrollment, it is increasingly difficult to begin new programs despite climbing enrollments.

(b)  The Commissioner of Education shall :

(1)  Outline and review the current method or methods by which tuition is paid for students enrolled in secondary schools (“secondary students”) to attend regional technical center programs.

(2)  Consider and propose potential solutions to any barriers preventing, discouraging, or failing to encourage secondary students to attend regional technical center programs, including scheduling issues, availability of classes outside the traditional school day and academic year, and financial disincentives.

(3)  Outline and review the current method or methods by which the cost of adults attending programs at a regional technical center is funded, both for adults who have a high school diploma and for those who do not.

(4)  Consider and propose potential solutions to any barriers preventing, discouraging, or failing to encourage adults, with and without a high school diploma, to attend regional technical centers, including scheduling issues, availability of classes outside the traditional school day and academic year, and financial disincentives.

(5)  Consider and propose potential financial and other incentives to encourage regional technical centers to offer technical education programs at times other than the traditional school day and academic year and to otherwise make technical education programs more available to secondary students and to adults with and without high school diplomas.

(6)  Consider the positive and negative aspects of including within the definition of “pupil” for purposes of determining a district’s average daily membership all adult students with a high school diploma who are attending programs at a regional technical center and consider and propose other methods of subsidizing tuition for these students.

(c)  On or before January 15, 2009, the commissioner shall submit a written report to the senate committee on economic development, housing and general affairs, the house committee on commerce, and the senate and house committees on education detailing the results of the work performed pursuant to this section and all potential methods of addressing the identified issues.

Part III

*** Workforce Development for Green Industries ***

Sec. 11.  FINDINGS; PURPOSE

(a)  The general assembly finds the following:

(1)  There is a growing global demand for products and services that will reduce the impact on the natural environment by individuals, businesses, governments, and many other entities.

(2)  There is a common international perception that Vermont has a very well‑defined green identity, a reputation developed through years of commitment to environmental integrity.

(3)  Vermont’s resources should be used to build a vibrant and strong environmental industry sector that creates high-wage jobs for Vermonters through the development and export of value‑added products and services designed to reduce our collective impact on the environment.

(4)  Vermont must create a framework that stimulates the innovation and investment necessary to expand the development of new renewable energy sources and distribution capacity.

(5)  Vermont’s economic development strategy must be designed to raise Vermont’s profile as a hub of environmental integrity, innovation, and opportunity for working Vermonters.

(b)  The purpose of this act is to effect the following:

(1)  To understand better and quantify the economic value and market opportunities and benefits of the emerging environmental technology sector in Vermont so that Vermont can derive economic value in the form of job creation, innovation, and development of technologies, products, and services that protect and enhance the environment.

(2)  To formulate a strategy for environmental technology sector workforce development and training and develop programs that promote and market that sector and create a competitive workforce equipped with the necessary skills and competencies to assure that Vermont is strategically positioned to compete effectively in environmental technology industries and the global marketplace and space.

Sec. 12.  WORKFORCE DEVELOPMENT PLAN; ENVIRONMENTAL TECHNOLOGY SECTOR JOB TRAINING; LABOR FORCE ANALYSIS

(a)  For the purposes of this section:

(1)  “Environmental technology employee” means a fulltime employee primarily engaged in providing goods or delivering services in the environmental technology sector.

(2)  “Environmental technology sector” means businesses and organizations that work in or are related to at least one of the following:

(A)  Waste management, including waste collection, treatment, disposal, reduction, recycling, and remediation.

(B)  Natural resource protection and management, including water and wastewater purification and treatment, air pollution control and prevention or remediation, soil and groundwater protection or remediation, and hazardous waste control or remediation.

(C)  Energy efficiency or conservation.

(D)  Clean energy, including solar, wind, wave, hydro, geothermal, hydrogen, fuel cells, waste-to-energy, or biomass.

(E)  Any other environmental technology certified by the secretary of commerce and community development.

(b)  The commissioner of labor in collaboration with the secretary of commerce shall perform a labor force analysis using the inventory of green business developed by the agency of commerce and the North American Industry Classification System (NAICS).  The analysis shall include the geographic distribution of existing businesses and anticipated opportunities for business recruitment in the environmental technology sector.  The analysis shall be issued in a written report to the house committee on commerce and the senate committee on economic development, housing and general affairs no later than February 1, 2009 and shall include:

(1)  Regional profiles that identify the concentration and distribution of environmental technology opportunities in Vermont.

(2)  The skills and competencies necessary for successful employment in the environmental technology sector.

(3)  Projection of employer needs and employee skills required for the future of the environmental technology sector.

(c)  The commissioner of labor shall develop a workforce development plan relating to green building, energy efficiency, and renewable energy industries.  The plan shall be developed in consultation with the following groups:  the apprenticeship program; the building trades; the Vermont workforce development council; the association of weatherization contractors; Efficiency Vermont; Vermont Technical College; the association of general contractors; associated industries of Vermont; Vermont businesses for social responsibility; Vermont fuel dealers association; the coalition for workforce solutions; Renewable Energy Vermont; Vermont small business development centers; the  association of vocational‑technical schools; the association of adult service coordinators; Vermont green building network; and the green institute for the advancement of sustainability.

* * * Employment Practices ***

Sec. 13.   21 V.S.A. §358 is amended to read:

§ 358. ADMINISTRATION

The commissioner and the commissioner's authorized representatives have full power and authority for all the following:

* * *

(4) To recommend and determine the amount of deductions for board, lodging, apparel, or other items or services supplied by the employer or any other conditions or circumstances as may be usual in a particular employer-employee relationship, including gratuities; provided, however, that in no case shall the total remuneration received by an employee, including wages, board, lodging, apparel, or other items or services supplied by the employer, including gratuities, be less than the minimum wage rate set forth in section 384 of this title.   No deduction may be made for the care, cleaning, or maintenance of required apparel.  No deduction for required apparel shall be made without the employee’s express written authorization and the deduction shall not:

(A)   Reduce the total remuneration received by an employee below the hourly minimum wage.

(B)  Include any administrative fees or charges.

(C)  Amend, nullify or violate the terms and conditions of any collective bargaining agreement.

* * *

Sec. 14.  EFFECTIVE DATE

This act shall take effect from passage.

(Committee Vote: 5-0-0)

Reported favorably with recommendation of proposal of amendment by Senator Miller for the Committee on Appropriations.

The Committee recommends that the Senate propose to the House to amend the bill as follows:

First:  By striking out Sections 1 through 5 in their entirety

Second: In Sec. 6, in 10 V.S.A. §543 (f) (1) (G), after the words “training and employment including”, by striking out the words “a commitment” and inserting in lieu thereof the words an effort and consideration

Third:  By striking out Sections 7 through 9 in their entirety

Fourth:  In Sec. 12, in subsection (c), after the words “Vermont Green Building Network”, by inserting a semicolon and the following: the Lake Champlain Chamber of Commerce; the Vermont Chamber of Commerce; the Greater Burlington Investment Corporation 

and that upon passage, the title of the bill shall be amended to read:  “AN ACT RELATING TO WORKFORCE DEVELOPMENT”

(Committee Vote: 7-0-0)

(No House amendments)

House Proposal of Amendment

S. 168

An act relating to operating a motor vehicle under the influence of alcohol or drugs.

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  23 V.S.A. § 1130a is added to read:

§ 1130A.  PERMITTING UNDULY DANGEROUS PERSON TO OPERATE

(a)    No person shall knowingly and voluntarily permit a motor vehicle owned by him or her or under his or her control to be operated by a person:

(1)  whom the person permitting the operation knows or should know is under the influence of alcohol or one or more drugs as defined in subdivision 1200(2) of this title; or

(2)  whose license or privilege to operate a motor vehicle has been revoked, suspended or refused by the commissioner of motor vehicles for a violation of subsections 1091(b) or section 1201 or a suspension under section 1205 of this title, if the person permitting the operation knows of the revocation, suspension, or refusal.

(b)  Except as provided in subsection (c) of this section, a person who violates subsection (a) of this section shall be fined not more than $1,000.00.

(c)  A person who violates subsection (a) of this section shall be fined not more than $5,000.00 or imprisoned not more than two years, or both, if the person who was permitted to operate the vehicle causes an accident which results in death or serious bodily injury as defined in 13 V.S.A.§ 1021(2) to any person other than the operator.  The provisions of this subdivision do not limit or restrict prosecutions for manslaughter.

(d)  For purposes of this section, a person may assert as an affirmative defense a necessity defense, including that threat or coercion was used by the operator to obtain permission from the person to operate the motor vehicle.

Sec. 2.  23 V.S.A. § 1200 is amended to read:

§ 1200.  DEFINITIONS

As used in this subchapter,:

* * *

(2)  “Drug” means:

(A)  a regulated drug as defined in section 4201 of Title 18; or

(B)  any substance or combination of substances, other than alcohol, which affects the nervous system, brain, or muscles of a person so as to impair, noticeably and appreciably, a person’s ability to drive a vehicle safely.  

* * *

Sec. 3.  ALCOHOL IGNITION INTERLOCKS STUDY:  MULTIPLE DUI AND HIGH BLOOD-ALCOHOL-CONTENT FIRST OFFENSE DUI

(a)  The Vermont sentencing commission shall study the issue of implementing a system of alcohol ignition interlocks in Vermont for persons with multiple DUI convictions, as well as for first time DUI offenders with high blood-alcohol-content levels at the time of arrest.  The commission may consult with any other persons and entities able to assist the study, and shall:

(1)  gather and analyze information about alcohol ignition interlock systems, and review current practices regarding use of the systems in other states;

(2)  study the feasibility of having the costs of alcohol ignition interlock systems be borne by DUI offenders;

(3)  study the net costs of implementing an alcohol ignition interlock system in Vermont, including the availability of federal funding for that purpose; and

(4)  study the advisability and feasibility of implementing a system of conditional drivers licenses in Vermont , and the advisability of lowering the .04 blood alcohol limit on commercial driver’s licenses.

(b)  The commission shall report its findings and make recommendations to the senate and house committees on judiciary no later than December 15, 2008. 

Sec. 4.  LAW ENFORCEMENT ROADSIDE ACCESS TO DEPARTMENT OF CORRECTION RECORDS

The department of public safety, the department of corrections, and the department of motor vehicles shall collaborate to develop and implement procedures allowing law enforcement officers roadside access to department of corrections records, including records regarding probation, parole, and conditions of release.  The departments shall make a report to the senate and house committees on judiciary no later than December 15, 2008.

House Proposal of Amendment

S. 250

An act relating to decreasing the amounts of cocaine and heroin required to be possessed to trigger drug trafficking penalties.

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  18 V.S.A. § 4231(c)(1) is amended to read:

(c)(1)  Trafficking.  A person knowingly and unlawfully possessing cocaine in an amount consisting of 300 225 grams or more of one or more preparations, compounds, mixtures, or substances containing cocaine with the intent to sell or dispense the cocaine shall be imprisoned not more than 30 years or fined not more than $1,000,000.00, or both.  There shall be a permissive inference that a person who possesses cocaine in an amount consisting of 300 225 grams or more of one or more preparations, compounds, mixtures, or substances containing cocaine intends to sell or dispense the cocaine.  The amount of possessed cocaine under this subdivision to sustain a charge of conspiracy under 13 V.S.A. § 1404 shall be no less than 800 600 grams in the aggregate.

Sec. 2.  18 V.S.A. § 4233(c) is amended to read:

(c)  Trafficking.  A person knowingly and unlawfully possessing heroin in an amount consisting of seven five grams or more of one or more preparations, compounds, mixtures, or substances containing heroin with the intent to sell or dispense the heroin shall be imprisoned not more than 30 years or fined not more than $1,000,000.00, or both.  There shall be a permissive inference that a person who possesses heroin in an amount of seven five grams or more of one or more preparations, compounds, mixtures, or substances containing heroin intends to sell or dispense the heroin.  The amount of possessed heroin under this subsection to sustain a charge of conspiracy under 13 V.S.A. § 1404 shall be no less than 20 15 grams in the aggregate.

Sec. 3.  18 V.S.A. § 4252 is added to read:

§ 4252.  PENALTIES FOR DISPENSING OR SELLING REGULATED DRUGS IN A DWELLING

(a)  No person shall knowingly permit a dwelling, building, or structure owned by or under the control of the person to be used for the purpose of illegally dispensing or selling a regulated drug.

(b)  A person who violates subsection (a) of this section shall be imprisoned not more than two years or fined not more than $1,000.00 or both.

(c)  For purposes of this section, a landlord may assert as an affirmative defense that he or she has commenced eviction proceedings against a tenant dispensing or selling a regulated drug.

Sec. 4.  SENTENCING COMMISSION DRUG POLICY STUDY

(a)(1)  The Vermont sentencing commission shall review current state practices regarding:

(A)  sentencing for drug offenses;

(B)  prevention and treatment of drug abuse; and

(C)  investigation, prosecution, and punishment for drug offenses.  

(2)  The commission shall determine whether Vermont laws are consistent with best practices, considering the costs and benefits to different approaches with best practices.  This review shall be given priority as the commission outlines its work for 2008 and 2009. 

(b)  The commission shall report its findings and recommendations to the senate and house committees on judiciary no later than March 30, 2009.  

(c)  In conducting the review, the committee shall have the assistance and cooperation of all state and local agencies and departments, including the department of public safety.

House Proposal of Amendment

S. 281

An act relating to end-of-life care and pain management.

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  STUDY AND REPORT ON PALLIATIVE CARE, END-OF-LIFE CARE, AND PAIN MANAGEMENT

(a)  The office of the attorney general, in cooperation with the departments of health and of disabilities, aging, and independent living, shall convene and lead a group of stakeholders to discuss and make recommendations on legislative and non-legislative solutions for improving:

(1)  palliative care,

(2)  end-of-life care,

(3)  management of chronic pain, and

(4)  access to these services for children.

(b)  Participants shall include:

(1)  the Vermont Program for Quality in Health Care;

(2)  the Hospice and Palliative Care Council of Vermont;

(3)  the Vermont health care ombudsman;

(4)  the Vermont long-term care ombudsman;

(5)  Patient Choices at End of Life – Vermont;

(6)  the Vermont Alliance for Ethical Healthcare;

(7)  the Community of Vermont Elders;

(8)  the Vermont Ethics Network;

(9)  the Vermont Health Care Association;

(10)  the Vermont Association of Hospitals and Health Systems;

(11)  the Vermont Medical Society;

(12)  the Vermont Coalition on Disability Rights;

(13)  the American Cancer Society;

(14)  AARP Vermont;

(15)  one representative appointed by the speaker of the house and one senator appointed by the president pro tempore; and

(16)  other interested stakeholders.

(c)  The group shall consider:

(1)  available data and studies from existing sources and evaluate their utility for driving improvements in palliative care, end-of-life care, and pain management services across settings in this state;

(2)  the value and feasibility of conducting ongoing studies or preparing an annual report card, or both;

(3)  recommendations for improving ongoing coordination of activities directed toward improving palliative care, end-of-life care, and pain management services throughout the state;

(4)  how best to protect the interests of persons who:

(A)  have a terminal illness,

(B)  are receiving hospice care, or

(C)  are suffering chronic pain;

(5)  how to advance the goal of improving health care services for children with painful or life-threatening medical conditions, including:

(A)  the current availability of insurance coverage for pediatric palliative care services and treatment for chronic pain, and

(B)  avenues for increasing children’s access to care;

(6)  recommendations for improving methods of informing consumers about options in this state for end-of-life care, palliative care, and management of chronic pain, and about the importance of having an advance directive, including means to ensure that:

(A)  persons suffering from chronic pain are aware of their right to request or reject the use of all medications, and

(B)  persons with a terminal illness are informed about their end-of-life care options;

(7)  recommendations on the adoption and implementation of statewide standards on pain management for each of the health care professions licensed in this state; and

(8)  such other issues as the group determines necessary and appropriate.

(d)  No later than January 15, 2009, the stakeholders’ group shall provide a written progress report on its initial findings and recommendations, including the appropriateness of an annual report card, to the house committees on human services and on health care and the senate committee on health and welfare.  No later than December 15, 2009, the group shall provide a final report on its findings and recommendations, including recommendations on the group’s continued duration and future activities, to the house committees on human services and on health care and the senate committee on health and welfare.

(e) Participants of the stakeholders group established by this act who are members of the General Assembly are entitled to receive per diem compensation and reimbursement of expenses as provided by 2  V.S.A. §406.

House Proposal of Amendment

S. 284

An act relating to the department of banking, insurance, securities and health care administration.

The House proposes to the Senate to amend the bill as follows:

First:  By striking Sec. 1 in its entirety and inserting in lieu thereof a new Sec. 1 to read as follows:

Sec. 1.  8 V.S.A. § 2201(c)(14) is added to read:

(14)  nonprofit organizations established under testamentary instruments, exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3), and which make loans for postsecondary educational costs to students and their parents, provided that the organizations provide annual accountings to the probate court pursuant to 14 V.S.A. § 2324.

Second:  By adding Secs. 9–13 to read:

Sec. 9.  8 V.S.A. § 4840(d) is amended to read:

(d)  The commissioner may waive or reduce the requirements of this section for an attorney that is under common ownership or control with a reciprocal insurer.  The commissioner may reduce by 50 percent the bond amount required by this section for an attorney that is not under common ownership or control with a reciprocal insurer if the commissioner finds sufficient evidence of financial responsibility, notwithstanding the reduction of the bond amount.

Sec. 10.  8 V.S.A. § 6006(i) is amended to read:

(i)  The provisions of subchapter 3, and subchapter 3A of chapter 101 of this title, pertaining to mergers, consolidations, conversions, mutualizations, redomestications, and mutual holding companies, shall apply in determining the procedures to be followed by captive insurance companies in carrying out any of the transactions described therein, except that:

* * *

(3)  the provisions of subsections 3423(f) and (h) of this title shall not apply, and the commissioner may waive or modify the requirement of subdivision 3423(b)(4) of this title, with respect to market value of a converted company as necessary or desirable to reflect applicable restrictions on ownership of companies formed under this chapter; and

(4)  an alien insurer may be a party to a merger authorized under this subsection; provided that the requirements for a merger between a captive insurance company and a foreign insurer under section 3431 of this title shall apply to a merger between a captive insurance company and an alien insurer under this subsection.  Such alien insurer shall be treated as a foreign insurer under section 3431 and such other jurisdictions shall be the equivalent of a state for purposes of section 3431; and

(5)  the commissioner may issue a certificate of general good to permit the formation of a captive insurance company that is established for the sole purpose of merging with or assuming existing insurance or reinsurance business from an existing Vermont licensed captive insurance company.  The commissioner may, upon request of such newly formed captive insurance company, waive or modify the requirements of subdivisions 6002(c)(1)(B) and (2) of this title.

Sec. 11.  8 V.S.A. § 6048n is amended to read:

§ 6048n.  SPONSORED CAPTIVES

In addition to the provisions of sections 6048a-6048m of this subchapter, the provisions of this section shall apply to any sponsored captive insurance company licensed as a special purpose financial captive insurance company pursuant to this subchapter.

* * *

(4)  The special purpose financial captive insurance company on behalf of a protected cell shall be entitled to assert the same claims and defenses in actions in law or equity as if the protected cell were a corporation established under Title 11A of the Vermont Statutes Annotated, including, but not limited to, claims and defenses in actions at law or equity alleging alter ego, corporate veil piercing, offset, substantive consolidation, equitable subordination, or recoupment.  In connection with the conservation, rehabilitation, or liquidation of a special purpose financial captive insurance company or one or more of its protected cells, the assets and liabilities of a protected cell shall at all times be kept separate from, and shall not be commingled with, those of other protected cells and the special purpose financial captive insurance company, and the assets of one protected cell shall not be used to satisfy the obligations or liabilities of another protected cell or the special purpose financial captive insurance company based on legal or equitable claims or defenses, including but not limited to alter ego, piercing the corporate veil, offset, substantive consolidation, equitable subordination, or recoupment, unless such claims or defenses would apply to such protected cell if it were a special purpose finance captive insurance company without separate cells.

(4)(5)  Notwithstanding subdivision 6034(1) of this chapter, the special purpose financial captive insurance company may issue securities to any person approved in advance by the commissioner.

(5)(6)  Notwithstanding section 6048g of this subchapter, the special purpose financial captive insurance company shall possess and thereafter maintain unimpaired paid-in capital and surplus of not less than $500,000.00.

(6)(7)  The “general account” of a sponsored captive insurance company licensed as a special purpose financial captive insurance company shall mean all assets and liabilities of the sponsored captive insurance company not attributable to a protected cell.

(7)(8)(A)  Any security issued by a special purpose financial captive insurance company with respect to a protected cell and any other contract or obligation of the special purpose financial captive insurance company with respect to a protected cell shall include the designation of such protected cell and shall include a disclosure in a form and content satisfactory to the commissioner to the effect that the following statement, or such other statement as may be required by the commissioner:

(i)  In the case of a security:  “The holder of such this security and any counterparty to such contract or obligation shall have no right or recourse against the special purpose financial captive insurance company and its assets other than against assets properly attributable to such the designated protected cell. and the special purpose financial captive insurance company’s general account, to the extent permitted by Vermont law.”

(ii)  In the case of a contract or obligation:  “The counterparty to this contract or obligation shall have no right or recourse against the special purpose financial captive insurance company and its assets other than against assets properly attributable to the designated protected cell and the special purpose financial captive insurance company’s general account, to the extent permitted by Vermont law.”

(B)  Notwithstanding the requirements of this subdivision (7)(8) and subject to the provisions of this chapter and other applicable law or regulation, the failure to include such disclosure, in whole or part, in such security, contract, or obligation with respect to a protected cell shall not serve as the sole basis for a creditor, ceding insurer, or any other person to have recourse against the general account of the special purpose financial captive insurance company in excess of the limitations provided for in subdivision (12)(E) of this subsection, or against the assets of any other protected cell.

(8)(9)  In addition to the provisions of section 6034 of this chapter, the special purpose financial captive insurance company shall be subject to the following with respect to its protected cells:

(A)  The special purpose financial captive insurance company shall establish a protected cell only for the purpose of insuring or reinsuring risks of one or more reinsurance contracts with a ceding insurer or two or more affiliated ceding insurers, with the intent of facilitating an insurance securitization.  A separate protected cell shall be established with respect to each such ceding insurer, provided that a separate protected cell shall be established with respect to each reinsurance contract or contracts that are funded in whole or in part by a separate securitization transaction; and

(B)  A sale, an exchange, or another transfer of assets may not be made by the special purpose financial captive between or among any of its protected cells without the prior approval of the commissioner.

(9)(10)  All attributions of assets and liabilities to the protected cells and the general account shall be in accordance with the plan of operation approved by the commissioner.  No other attribution of assets or liabilities may be made by a special purpose financial captive insurance company between its general account and any protected cell or between any protected cells.  The special purpose financial captive insurance company shall attribute all insurance obligations, assets, and liabilities relating to a reinsurance contract entered into with respect to a protected cell and shall attribute the related insurance securitization transaction, including any securities issued by the special purpose financial captive insurance company as part of the insurance securitization, to such protected cell.  The rights, benefits, obligations, and liabilities of any securities attributable to such protected cell and the performance under such reinsurance contract and the related securitization transaction and any tax benefits, losses, refunds, or credits allocated pursuant to a tax allocation agreement to which the special purpose financial captive insurance company is a party, including any payments made by or due to be made to the special purpose financial captive insurance company pursuant to the terms of such agreement, shall reflect the insurance obligations, assets, and liabilities relating to the reinsurance contract and the insurance securitization transaction that are attributed to such protected cell.

(10)(11)  For purposes of applying the provisions of chapter 145 of this title to a sponsored captive insurance company licensed as a special purpose financial captive insurance company, the definition of “insolvency” and “insolvent” in subdivision 6048c(2) shall be applied separately to each protected cell and to the special purpose financial captive insurance company’s general account.

(11)(12)  In addition to the provisions of section 6048m of this chapter:

(A)  The provisions of chapter 145 of this title shall apply to each protected cell of the special purpose financial captive. Any proceeding or action taken by the commissioner pursuant to chapter 145 of this title with respect to a protected cell of a special purpose financial captive shall not be the sole basis for a proceeding pursuant to chapter 145 of this title with respect to any other protected cell of such special purpose financial captive insurance company or the special purpose financial captive insurance company’s general account.

(B)  The receiver of a special purpose financial captive insurance company shall ensure that the assets attributable to one protected cell are not applied to the liabilities attributable to another protected cell or to the special purpose financial captive insurance company’s general account unless an asset or liability is attributable to more than one protected cell, in which case the receiver shall deal with the asset or liability in accordance with the terms of any relevant governing instrument or contract.

(C)  The insolvency of a protected cell shall not be the sole basis for the commissioner to prohibit payments by the special purpose financial captive insurance company made pursuant to a special purpose financial captive insurance company security or reinsurance contract with respect to any other protected cell or to prohibit any action required to make such payments.

(A)  Except as otherwise modified in this section, the terms and conditions set forth in chapter 145 of this title pertaining to administrative supervision of insurers and the rehabilitation, receiverships, and liquidation of insurers apply in full to special purpose financial captive insurance companies or any of the special purpose financial captive insurance company’s protected cells, independently, without causing or otherwise effecting a conservation, rehabilitation, receivership, or liquidation of the special purpose financial captive insurance company or another protected cell that is not otherwise insolvent.

(B)  Notwithstanding the provisions of chapter 145 of this title, and without causing or otherwise effecting the conservation or rehabilitation of an otherwise solvent protected cell of a special purpose financial captive insurance company and subject to the provisions of subdivision (G)(v) of this subdivision (12), the commissioner may apply by petition to the superior court for an order authorizing the commissioner to conserve, rehabilitate, or liquidate a special purpose financial captive insurance company domiciled in this state on one or more of the following grounds:

(i)  embezzlement, wrongful sequestration, dissipation, or diversion of the assets of the special purpose financial captive insurance company intended to be used to pay amounts owed to the ceding insurer or the holders of special purpose financial captive insurance company securities; or

(ii)  the special purpose financial captive insurance company is insolvent; or

(iii)  the holders of a majority in outstanding principal amount of each class of special purpose financial captive insurance company securities attributable to each particular protected cell requests or consents to conservation, rehabilitation, or liquidation pursuant to the provisions of this subchapter.

(C)  Notwithstanding the provisions of chapter 145 of this title, the commissioner may apply by petition to the superior court for an order authorizing the commissioner to conserve, rehabilitate, or liquidate one or more of a special purpose financial captive insurance company’s protected cells, independently, without causing or otherwise effecting a conservation, rehabilitation, receivership, or liquidation of the special purpose financial captive insurance company generally or another of its protected cells, on one or more of the following grounds:

(i)  embezzlement, wrongful sequestration, dissipation, or diversion of the assets of the special purpose financial captive insurance company attributable to the affected protected cell or cells intended to be used to pay amounts owed to the ceding insurer or the holders of special purpose financial captive insurance company securities of the affected protected cell or cells; or

(ii)  the affected protected cell is insolvent; or

(iii)  the holders of a majority in outstanding principal amount of each class of special purpose financial captive insurance company securities attributable to that particular protected cell request or consent to conservation, rehabilitation, or liquidation pursuant to the provisions of this subchapter.

(D)  Except where consent is given as described in subdivisions (B)(iii) and (C)(iii) of this subdivision (12), the court may not grant relief provided by subdivision (B) or (C) of this subdivision (12) unless, after notice and a hearing, the commissioner, who shall have the burden of proof, establishes by clear and convincing evidence that relief must be granted.  The court’s order may be made in respect of one or more protected cells by name, rather than the special purpose financial captive insurance company generally.

(E)  Notwithstanding another provision in this title, regulations adopted under this title, or another applicable law or regulation, upon any order of conservation, rehabilitation, or liquidation of a special purpose financial captive insurance company, or one or more of the special purpose financial captive insurance company’s protected cells, the receiver shall manage the assets and liabilities of the special purpose financial captive insurance company or the applicable protected cell pursuant to the provisions of this subchapter.  The assets attributable to one protected cell shall not be applied to the liabilities attributable to another protected cell, unless an asset or liability is attributable to more than one protected cell, in which case the receiver shall deal with the asset or liability in accordance with the terms of any relevant governing instrument or contract.  Recourse to the special purpose financial captive insurance company’s general account in connection with the conservation, rehabilitation, or liquidation of a protected cell shall be limited to the greater of the amount of assets in the general account as of the date such proceeding is commenced or the required minimum capital for the general account as of the date such proceeding is commenced.  Assets attributable to one protected cell or the special purpose financial captive insurance company’s general account shall not be set off against the liabilities attributable to another protected cell or to the special purpose financial captive insurance company’s general account.  Relief shall not be granted nor shall any order be issued based on equitable theories of recovery, including substantive consolidation, equitable subordination, or recoupment, to attach or seize the assets of any solvent protected cell for the benefit of another protected cell or special purpose financial captive insurance company, or to pierce the corporate veil of any protected cell, in connection with the conservation, rehabilitation, or liquidation of a special purpose financial captive insurance company or one or more protected cells, unless such equitable theories, attachment, seizure or corporate veil piercing would apply to such cell if it were a special purpose financial captive insurance company without separate cells.

(F)  With respect to amounts recoverable under a reinsurance contract, the amount recoverable by the receiver of a special purpose financial captive insurance company must not be reduced or diminished as a result of the entry of an order of conservation, rehabilitation, or liquidation with respect to the ceding insurer, notwithstanding another provision in the contract or other documentation governing the insurance securitization.

(G)  Notwithstanding the provisions of chapter 145 of this title or other laws of this state:

(i)  An application or petition, or a temporary restraining order or injunction issued pursuant to the provisions of chapter 145 of this title, with respect to a ceding insurer, does not prohibit the transaction of business by a special purpose financial captive insurance company with the ceding insurer, including any payment by a special purpose financial captive insurance company made pursuant to a security issued by a special purpose financial captive insurance company with respect to a protected cell, or any action or proceeding against a special purpose financial captive insurance company or its assets.

(ii)  The commencement of a summary proceeding or other interim proceeding commenced before a formal delinquency proceeding with respect to a special purpose financial captive insurance company, and any order issued by the court, does not prohibit the payment by a special purpose financial captive insurance company made pursuant to a security issued by a special purpose financial captive insurance company with respect to a protected cell or special purpose financial captive insurance company contract or the special purpose financial captive insurance company from taking any action required to make the payment.

(iii)  A receiver of a ceding insurer may not void a nonfraudulent transfer by the ceding insurer to a special purpose financial captive insurance company of money or other property made pursuant to a reinsurance contract.

(iv)  A receiver of a special purpose financial captive insurance company may not void a nonfraudulent transfer by the special purpose financial captive insurance company of money or other property made to a ceding insurer pursuant to a reinsurance contract or made to or for the benefit of any holder of a special purpose financial captive insurance company security issued with respect to a protected cell, or a special purpose financial captive insurance company security.

(v)  In the event of an insolvency of a special purpose financial captive insurance company where one or more protected cells remain solvent, the commissioner shall separate the special purpose financial captive insurance company’s solvent protected cells from the insolvent special purpose financial captive insurance company, shall allow on petition of the sponsor for the conversion of such solvent protected cells into one or more special purpose financial captive insurance companies, and shall issue such orders as the commissioner deems necessary to protect the solvency of the remaining solvent protected cells.  In the event of an insolvency of a protected cell, the special purpose financial captive insurance company’s assets shall be accounted for and managed in compliance with subdivision (E) of this subdivision (12) and the other laws of this state.

(H)  Subdivision (G) of this subdivision (12) does not prohibit the commissioner from taking any action permitted under chapter 145 of this title with respect only to the conservation or rehabilitation of a special purpose financial captive insurance company with protected cell or cells, provided the commissioner would have had sufficient grounds to seek to declare the special purpose financial captive insurance company insolvent; subject to and without otherwise affecting the provisions of subdivision (G)(v) of this subdivision (12).  In this case, with respect to the solvent protected cell or cells, the commissioner may not prohibit payments made by the special purpose financial captive insurance company pursuant to the special purpose financial captive insurance company security, reinsurance contract, or otherwise made under the insurance securitization transaction that are attributable to these protected cell or cells or prohibit the special purpose financial captive insurance company from taking any action required to make these payments.

(I)  With the exception of the fulfillment of the obligations under a special purpose financial captive insurance company contract, and notwithstanding another provision of this title or other laws of this state, the assets of a special purpose financial captive insurance company, including assets held in trust, shall not be consolidated with or included in the estate of a ceding insurer in any delinquency proceeding against the ceding insurer pursuant to the provisions of this title for any purpose, including, without limitation, distribution to creditors of the ceding insurer.

Sec. 12.  8 V.S.A. § 3614(a) is amended to read: 

§ 3614.  BOARD OF DIRECTORS

(a)  The board of directors of the association shall consist of not less than five nor more than nine persons serving, at least three of whom shall be persons who are officers, directors, or employees of insurance companies incorporated under the laws of this state, unless there are fewer than three such companies, in which case there shall be one director for each such company.  The directors shall serve terms as established in the plan of operation.  The members of the board shall be selected by member insurers subject to the approval of the commissioner.  Vacancies on the board shall be filled for the remaining period of the term by a majority vote of the remaining board members, subject to the approval of the commissioner.  Not less than one-half of the directors shall be persons who are officers, directors or employees of insurance companies incorporated under the laws of this state.

Sec. 13.  EFFECTIVE DATE

This act shall take effect July 1, 2008, except for Sec. 2, which shall take effect upon passage.


House Proposal of Amendment

S. 304

An act relating to a groundwater withdrawal program.

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  10 V.S.A. § 1390 is amended to read:

§ 1390.  POLICY

It is the policy of the state of Vermont that it shall protect its groundwater resources to maintain high quality drinking water and shall manage its groundwater resources to minimize the risks of groundwater quality deterioration by limiting human activities that present unreasonable risks to the use classifications of groundwater in the vicinities of such activities while balancing the state’s groundwater policy with the need to maintain and promote a healthy and prosperous agricultural community The general assembly hereby finds and declares that:

(1)  the state should adhere to the policy for management of groundwater of the state as set forth in section 1410 of this title;

(2)  in recognition that the groundwater of Vermont is a precious, finite, and invaluable resource upon which there is an ever-increasing demand for present, new, and competing uses; and in further recognition that an adequate supply of groundwater for domestic, farming, dairy processing, and industrial uses is essential to the health, safety, and welfare of the people of Vermont, the withdrawal of groundwater of the state should be regulated in a manner that benefits the people of the state; is compatible with long-range water resource planning, proper management, and use of the water resources of Vermont; and is consistent with Vermont’s policy of managing groundwater as a public resource for the benefit of all Vermonters;

(3)  it is the policy of the state that the state shall protect its groundwater resources to maintain high-quality drinking water;

(4)  it is the policy of the state that the groundwater resources of the state shall be managed to minimize the risks of groundwater quality deterioration by regulating human activities that present risks to the use of groundwater in the vicinities of such activities while balancing the state’s groundwater policy with the need to maintain and promote a healthy and prosperous agricultural community; and

(5)  it is the policy of the state that the groundwater resources of the state are held in trust for the public.  The state shall manage its groundwater resources in accordance with the policy of this section, the requirements of subchapter 6 of this chapter, and section 1392 of this title for the benefit of citizens who hold and share rights in such waters.  The designation of the groundwater resources of the state as a public trust resource shall not be construed to allow a new right of legal action by an individual other than the state of Vermont, except to remedy injury to a particularized interest related to water quantity protected under this subchapter. 

Sec.  2.  10 V.S.A. chapter 48, subchapter 6 is added to read:

Subchapter 6.  Groundwater Withdrawal Program

§ 1416.  DEFINITIONS

As used in this subchapter:

(1)  “Farming” means farming as the term is defined in subdivision 6001(22) of this title.

(2)  “Groundwater” means water below the land surface, including springs.

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

(4)  “Spring” means a groundwater source where groundwater flows naturally to the surface of the earth and is collected with a developed structure that is designed to locate or extract groundwater. 

(5)  “Surface water” means waters within the meaning of subdivision 1251(13) of this title.

(6)  “Water resources” means groundwater or surface water.

(7)  “Well” means any hole drilled, driven, bored, excavated, or created by similar method into the earth to locate, monitor, extract, or recharge groundwater where the water table or potentiometric surface is artificially lowered through pumping.

(8)  “Withdraw” or “withdrawal” means the intentional removal by any method or instrument of groundwater from a well, spring, or combination of wells or springs.

§ 1417.  EXISTING GROUNDWATER WITHDRAWAL; REPORTING

(a)  Beginning September 1, 2009, any person that withdraws more than 20,000 gallons per day, averaged over a calendar month at a single tract of land or place of business shall file a groundwater report with the secretary of natural resources on or before September 1 for the preceding calendar year.  The report shall be made on a form prescribed by the secretary and shall include:

(1)  the location, capacity, frequency, and rate of the withdrawal;

(2)  a description of the use of the water withdrawn; and

(3)  where feasible, the distance of each withdrawal from the nearest surface water source and wetland.

(b)  The following are exempt from the reporting requirements of this section:

(1)  a groundwater withdrawal for fire suppression or other public emergency purposes;

(2)  a withdrawal reported to the agency of natural resources under any program that requires the reporting of substantially similar data.  The agency of natural resources shall record such withdrawals with the information from withdrawals reported under this section;

(3)  domestic, residential use;

(4)  groundwater withdrawal for farming

(5)  dairy processors and milk handlers licensed in accordance with 6 V.S.A. § 2721;

(6)  public water systems, as that term is defined in section 1671 of this title; and

(7)  closed loop, standing column, or similar non-extractive geothermal heat pumps.

(c)  The secretary of natural resources may adopt rules to implement this section, including methods for calculating or estimating the amount of groundwater withdrawn from a well or spring.

§ 1418.  GROUNDWATER WITHDRAWAL PERMIT

(a)  On and after July 1, 2010, no person, for commercial or industrial uses, shall make a new or increased groundwater withdrawal of more than 57,600 gallons a day from any well or spring on a single tract of land or at a place of business without first receiving from the secretary of natural resources a groundwater withdrawal permit.  The following shall constitute a “new or increased withdrawal”:

(1)  The expansion of any existing withdrawal through:

(A)  additional withdrawal from one or more new wells or springs; or

(B)  an increase in the rate of withdrawal from a well or spring above the maximum rate set forth in any existing permit issued by the secretary of natural resources under this section; or

(2)  For previously unpermitted withdrawals, an increase in the rate of withdrawal after July 1, 2010 from a well or spring on a single tract of land or at a place of business of 25 percent of the baseline withdrawal or an increase of 57,600 gallons of groundwater withdrawn, whichever is smaller.

(3)  For the purposes of this subsection, the baseline withdrawal shall be the highest amount withdrawn by a person between 2005 and 2010.

(b)  The following are exempt from the permitting requirements of this section:

(1)  a groundwater withdrawal for fire suppression or other public emergency purpose;

(2)  domestic, residential use;

(3)  groundwater withdrawal for farming;

(4)  dairy processors and milk handlers licensed in accordance with 6 V.S.A. § 2721;

(5)  public water systems, as that term is defined in section 1671 of this title; and

(6)  closed loop, standing column, or similar non-extractive geothermal heat pumps.

(c)(1)  At least 30 days before filing an application for a permit under this section, the applicant shall hold an informational hearing in the municipality in which the withdrawal is proposed in order to describe the proposed project and to hear comments regarding the proposed project.  Public notice shall be given by posting in the municipal offices of the town in which the withdrawal is proposed and by publishing in a local newspaper at least 10 days before the meeting.

(2)  On or before the date of filing with the secretary of natural resources an application for a permit under this section, an applicant for a withdrawal under this section shall notify:

(A)  the clerk, legislative body, and any conservation commission in the municipality in which the proposed withdrawal is located;

(B)  adjoining municipalities;

(C)  the regional planning commission in the region where the proposed withdrawal is located;

(D)  all landowners and mobile home park residents within the zone of influence of a groundwater withdrawal or within one quarter mile downstream from a withdrawal from a spring.  Notice to the officers of a condominium association shall be deemed sufficient under this subdivision for notice to residents of a condominium; and

(E)  any public water systems permitted by the agency of natural resources in the municipality where the proposed withdrawal is located.

(3)  The applicant shall publish notice of the application in a newspaper of general circulation in the area in which the withdrawal is proposed and shall post a copy of the notice in the municipal clerk’s office in the municipality in which the withdrawal is located.

(4)  On its own motion or on receipt of a written request, the agency shall hold a public meeting in the municipality in which the withdrawal is proposed in order to describe the proposed project and to hear comments regarding the proposed project.  Opportunity shall be given all participants at a public meeting to ask questions and comment on all issues involved.  The agency shall prepare a responsiveness summary for each public meeting conducted.  Public notice shall be given by posting in the municipal offices of the town in which the withdrawal is proposed and by publishing in a local newspaper at least 10 days before the meeting.

(5)  No defect in the form or substance of any notice requirements in subdivision (1), (2), (3), or (4) of this subsection shall invalidate an application for a permit under this section provided that reasonable efforts are made to provide adequate posting and notice.  An application for a permit under this section shall be invalid when a defective posting or notice was materially misleading in content.  If an action is ruled to be invalid by the environmental court, the applicant may reapply and provide new posting and notice.

(d)  Application for a permit shall be on a form prepared by the secretary.  An application shall, at a minimum, contain the information necessary to make the determinations contained in subsection (e) of this section, and the following:

(1)  the purpose for the withdrawal;

(2)  the location and source of the withdrawal;

(3)  the amount of the proposed withdrawal, including estimates of the projected mean and peak daily, monthly, and annual withdrawals;

(4)  the place of the proposed return flow of withdrawn water;

(5)  the estimated amount of water that will not be returned to the watershed where the proposed withdrawal is located;

(6)  the location, demand on, and yield of existing sources of groundwater and surface water utilized by the applicant; and

(7)  a brief description of the alternative means considered for satisfying the applicant’s stated use for water.

(e)  The secretary shall not issue a permit for a new or increased groundwater withdrawal unless the secretary determines:

(1)  that the proposed withdrawal is planned in a fashion that provides for efficient use of the water;

(2)  that the proposed withdrawal, in combination with other existing withdrawals, will meet the standards set by the secretary of natural resources in rule for establishing a safe yield in the area of the withdrawal;

(3)  that the proposed withdrawal is consistent with the town or regional plan in which the proposed withdrawal is located, and with any duly adopted state policy to manage groundwater as a shared resource for the benefit of all citizens of the state, including any policies and programs of the state of Vermont regarding long-range planning, management, allocation, and use of groundwater and surface water in effect at the time the application for the withdrawal is filed;

(4)  that the proposed withdrawal will not have an undue adverse effect on existing uses of water dependent on the same water source;

(5)  that the proposed withdrawal will not have an undue adverse effect on a public water system permitted by the agency of natural resources;

(6)  that the proposed withdrawal will not have an undue adverse effect on significant wetlands under the Vermont wetland rules or on other water resources hydrologically interconnected with the well or spring from which the proposed withdrawal would be made;

(7)  that the proposed withdrawal will not violate the Vermont water quality standards; and

(8)  any other consideration that the secretary determines necessary for the conservation of water or protection of groundwater quality.

(f)  A permit issued under this section shall be valid for the period of time specified in the permit but not for more than 10 years.  A permit issued under this section shall include the following:

(1)  that groundwater withdrawals from a well or spring for drinking water supplies, farming, or dairy processing shall be given priority over other uses during times of shortage; and

(2)  any other condition that the secretary determines necessary for the conservation of water or protection of groundwater quality.

(g)  The secretary may require any person withdrawing groundwater in the state to obtain a permit under this section if the withdrawal is not exempt under subsection (b) of this section and secretary determines that the withdrawal violates the Vermont water quality standards or has an undue adverse effect on an existing use of groundwater, a public water system permitted by the agency of natural resources, wetlands, or water resources hydrologically interconnected with the well or spring from which the withdrawal occurs.  The secretary shall make a determination under this section based on review of the information set forth under subsection (d) of this section that is readily available to the secretary. 

(h)  A withdrawal permit issued under this section may be transferred upon a change of ownership of the facility or project for which the permit was issued, provided that the new owner applies for an administrative amendment to the permit certifying its agreement to comply with all terms and conditions of the transferred permit and assume all other associated obligations.

(i)  The following groundwater withdrawals shall be deemed to comply with the public trust requirements of the state for groundwater management and shall be entitled to a presumption that the withdrawal complies with the public trust requirements of the state:

(1)  A groundwater withdrawal permitted under this section;

(2)  A groundwater withdrawal for domestic, residential use;

(3)  A groundwater withdrawal for public water systems, except for a bottled water facility operating under a source permit issued prior to the effective date of this act, permitted under chapter 56 of this title;

(4)  A groundwater withdrawal for a potable water supply permitted under chapter 64 of this title;

(5)  A groundwater withdrawal for farming conducted in compliance with the requirements of chapter 215 of Title 6; and

(6)  A groundwater withdrawal by a dairy processor or milk handler licensed in accordance with 6 V.S.A. § 2721.

(j)  On or before July 1, 2010, the secretary shall adopt rules to implement this section.  When rules are adopted by the secretary under this section, section 1415 of this title shall be repealed.  The rules adopted under this section shall include:

(1)  requirements for the mitigation of an undue adverse effect on drinking water supplies, farming, public water systems, or any other affected use when the secretary determines such an undue adverse effect is likely to occur due to a proposed withdrawal;

(2)  requirements for the renewal of permits issued under this section.

(k)  Nothing contained in this subchapter shall be construed to alter or modify a right under a deed or contract to access groundwater in this state.

§ 1419.  CIRCUMVENTION

The secretary may require a person to report under section 1417 of this title or obtain a permit under section 1418 of this title when the secretary, in his or her discretion, determines that a withdrawal, subdivision of land, transfer of property, or other action is intended to circumvent the requirements of this subchapter.

Sec. 3.  10 V.S.A. § 1410 is amended to read:

§ 1410.  GROUNDWATER; RIGHT OF ACTION

* * *

(b)  Definitions.  As used in this section:

(1)  “Groundwater” means water below the land surface.

(2)  “Surface water” means any water on the land surface.

(3)  “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.

* * *

(g)  For the purposes of this section, a person who obtains and complies with a withdrawal permit issued pursuant to the requirements of section 1418 of this title shall be presumed to be engaged in a reasonable use of groundwater and not to cause unreasonable harm under subsection (b) of this section.

Sec. 4.  6 V.S.A. § 4851 is amended to read:

§ 4851.  PERMIT REQUIREMENTS FOR LARGE FARM OPERATIONS

* * *

(g)  A farm that is permitted under this section and that withdraws more than 57,600 gallons of groundwater per day averaged over any 30

consecutive-day period, shall annually report estimated water use to the secretary of agriculture, food and markets.  The secretary of agriculture, food and markets shall share information reported under this subsection with the agency of natural resources.

Sec. 5.  10 V.S.A. § 1675(g) is amended to read:

(g)(1)  Effective July 1, 2006, a public water system applying for a permit under this section for the bottling of more than 50,000 gallons of drinking water a day from a single source for public distribution and sale shall, in addition to complying with the requirements of this chapter and any rules adopted thereunder, submit to the Vermont state geologist and the department of environmental conservation a geologic cross section and groundwater contour map of an area, the size of which shall be in conformance with appendix A, part 3, subsection 3.3.5.2 of the Vermont water supply rule, surrounding the proposed source.

(2)  The requirements of subdivision (1) of this subsection shall apply to a public water system permitted under this section when the system proposes to expand the bottling of drinking water from a single source such that the total gallons of water bottled from the single source would exceed 50,000 gallons a dayBeginning July 1, 2010, the secretary shall not issue a source permit for a bottled drinking water supply unless, in addition to all other requirements for a source permit:

(1)  the permit application contains the information required by subdivisions 1418(d)(4)–(7) of this title;

(2)  the secretary finds that considerations in subdivisions 1418(e)(1)–(3) and (6)–(8) of this title have been satisfied;

(3)  the permit contains the permit conditions required by subsection (f) of this section; and

(4)  the permit applicant complies with the notice requirements of subsection 1418(c) of this title.

(h)  A public water system permitted after the effective date of this act that bottles drinking water for public distribution and sale shall obtain from the secretary a source water permit under subsection 1672(b) of this title upon renewal of its operating permit under this section and every 10 years thereafter.

Sec. 6.  10 V.S.A. § 6001d is added to read:

§ 6001d.  LARGE VOLUME GROUNDWATER WITHDRAWAL

In addition to all other applicable law, any withdrawal of more than 340,000 gallons of groundwater per day from any well or spring on a single tract of land or at a place of business, independent of the acreage of the tract of land or place of business, shall be a development under this chapter if the withdrawal requires a permit under section 1418 of this title or is by a bottled water facility regulated under chapter 56 of this title.

Sec. 7.  6 V.S.A. § 2674 is amended to read:

§ 2674.  RECORDS AND REPORTS--HANDLERS

(a)  On or before March 1 of each year all handlers shall send the secretary a full and accurate report of the amount of business done during the preceding year, together with such other statistical information as he may require.

(b)  A milk handler that is licensed under this chapter and that withdraws more than 57,600 gallons of groundwater per day averaged over any 30 consecutive‑day period shall annually report estimated water use to the secretary of agriculture, food and markets.  The secretary of agriculture, food and markets shall share information reported under this section with the agency of natural resources.

Sec. 8.  EFFECTIVE DATE

This act shall take effect upon passage.

House Proposal of Amendment

S. 311

An act relating to use value appraisal program.

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS; INTENT

(a)  The general assembly finds that the use value appraisal program:

(1)  Continues to achieve the goals of the program although the goal of protecting natural ecological systems could be better met by amending the 20‑percent rule to allow for more flexibility in the enrollment of ecological areas, such as rare or exemplary natural communities, riparian buffers, wetlands, vernal pools, and significant wildlife habitat;

(2)  Needs electronic coordination;

(3)  Appears to need appropriate staff increases at the division of property valuation and review and at the department of forests, parks and recreation;

(4)  Needs administrative streamlining;

(5)  Should provide consistent oversight between the agricultural and forest land programs;

(6)  Should generate more funding for sufficient administration of the program;

(7)  Has serious misperceptions about it in the minds of the general public, listers, potentially eligible landowners, enrolled landowners, attorneys, and realtors that the state must lead an educational effort to correct.

(b)  Therefore, the general assembly intends that this act will improve this successful program.

* * * New Application at Time of Transfer of Ownership and Increase of the Application Fee * * *

Sec. 2.  32 V.S.A. § 3756(e) is amended to read:

(e)  Once a use value appraisal has been applied for and granted under this section, such appraisal shall remain in effect for subsequent tax years pursuant to the provisions of subsection (f) of this section, and until the property concerned is transferred to another owner or is no longer eligible under provisions of section 3752 or 3755 of this chapter, or due to a change of use or as otherwise provided in section 3757 of this chapter.  If enrolled property is transferred to another owner, the new owner shall be entitled to continue to have the eligible property appraised at its use value, provided the property remains eligible and provided the new owner shall elect the continuation of use value appraisal on the property transfer tax return at the time of transfer and, within 30 days after the property transfer tax return is has been received by the municipality for recording, has applied to the director and paid the fees described in this subsection.  The grant of use value appraisals of agricultural forest land and farm buildings shall be recorded in the land records of the municipality by the clerk of the municipality.  The department of taxes may collect from applicants Applications shall include the fees specified in subdivision 1671(a)(6) or subsection 1671(c) of this title, and a fee of $30.00 for deposit in a special fund established and managed pursuant to subchapter 5 of chapter 7 of this title, and which. The fund shall be available as payment for the fees of the clerk of the municipality and for the improvement of the management of the program.

Sec. 3.  32 V.S.A. § 3757(e)(3) is amended to read:

(3)  of any transfer of ownership.  A transfer of ownership, alone, will not affect eligibility of the parcel, and no new maps will be required solely because of a transfer, but failure to provide maps, a new application, or transfer information to the division of property valuation and review within 30 days of a request being sent by certified mail by the director will result in removal of the parcel from the program.

Sec. 4.  PROPERTY TRANSFER TAX RETURN

The commissioner of taxes shall amend the property transfer tax return to include an election to continue eligible property in the use value appraisal program at the time of transfer to a new owner, as allowed under 32 V.S.A. § 3756(e).

* * * Increase Time and Flexibility to Inspect Forest Parcels * * *

Sec. 5.  32 V.S.A. § 3755(b)(3) and (c) are amended to read:

(3)  there has not been filed with the director an adverse inspection report by the department stating that the management of the tract is contrary to the forest or conservation management plan, or contrary to the minimum acceptable standards for forest or conservation management.  The management activity report of conformance with any management plan shall be on a form prescribed by the commissioner of forests, parks and recreation in consultation with the commissioner of taxes and shall include a detachable section signed by all the owners that shall contain the federal tax identification numbers of all the owners.  The section containing federal tax identification numbers shall not be made available to the general public, but shall be forwarded to the commissioner of taxes within 30 days after receipt and used for tax administration purposes.  If any owner shall satisfy the department that he or she was prevented by accident, mistake or misfortune from filing a management plan which is required to be filed on or before October 1 or an annual conformance a management activity report which is required to be filed on or before February 1 of the year following the year when the management activity occurred, the department may receive that management plan or annual conformance management activity report at a later date; provided, however, no management plan shall be received later than December 31 and no annual conformance management activity report shall be received later than March 1.

(c)  At intervals not to exceed five years, the The department of forests, parks and recreation shall audit periodically review the management plans and each year review the conformance management activity reports for each parcel of managed forest land qualified for use value appraisal.  Likewise, at that have been filed.  At intervals not to exceed five ten years, that department shall inspect each tract parcel of managed forest land qualified for use value appraisal to verify that the terms of the management plan have been carried out in a timely fashion.  If that department finds that the management of the tract is contrary to the conservation or forest management plan, or contrary to the minimum acceptable standards for conservation or forest management, it shall file with the owner, the assessing officials and the director an adverse inspection report within 30 days of the inspection.

Sec. 6.  32 V.S.A. § 3756(i) is amended to read:

(i)  The director shall remove from use value appraisal an entire parcel of managed forest land and notify the owner in accordance with the procedure in subsection (b) of this section when the department of forests, parks and recreation has not received a conformance management activity report or has received an adverse inspection report, unless the lack of conformance consists solely of the failure to make prescribed planned cutting.  In that case, the director may delay removal from use value appraisal for a period of one year at a time to allow time to bring the parcel into conformance with the plan.

* * * Allow for Management of Ecological Areas * * *

Sec. 7.  COMMISSIONER OF FORESTS, PARKS AND RECREATION

The commissioner of forests, parks and recreation shall amend the minimum standards of forest management to expand the eligibility of Site 4 land and to identify certain ecologically sensitive areas that will be allowed to be managed for other purposes than timber production, as follows:

(1)  A parcel may be eligible if no more than 20 percent of the acres to be enrolled are Site 4, plus open and not to be restocked within two years, plus ecologically significant areas designated by the department.  These acres need not be managed for timber production.

(2)  The commissioner, in partnership with the Vermont nongame and natural heritage program, should take note of and consider criteria developed by the American Tree Farm System and the Forest Stewardship Council in addition to the criteria submitted in testimony for determining ecologically sensitive areas.  The public shall be given an opportunity to comment on the amended standards.

(3)  If more than 20 percent of the acres to be enrolled are Site 4, plus open not to be restocked, plus ecologically significant not to be managed for timber production, landowners may apply to the commissioner for approval.  The plans and maps shall be reviewed by the county foresters of the county where the parcel is located.  In no situation shall a parcel be approved that does not provide for at least 80 percent of the land classified as Site 1, 2, or 3 to be managed for timber production. 

(4)  The amended standards shall be in effect on or before April 15, 2009.

(5)  The commissioner shall report to the house and senate committees on natural resources and energy and the house committees on fish, wildlife and water resources and agriculture on the changes in the standards on or before January 15, 2009.

* * * Flexibility in Updating Use Value on Town Grand List * * *

Sec. 8.  32 V.S.A. § 4111(e) and (g) are amended to read:

(e)  When the listers return the grand list book to the town clerk, they shall notify by first class mail, on which postage has been prepaid and which has been addressed to their last known address, all affected persons, listed as property owners in the grand list book of any change in the appraised value of such property or any change in the allocation of value to the homestead as defined under subdivision 5401(7) of this title or the housesite as defined under subdivision 6061(11) of this title, and also notify them of the amount of such change and of the time and place fixed in the public notice hereinafter provided for, when persons aggrieved may be heard.  No notice shall be required for a change solely to reflect a new use value set by the current use advisory board or the adjustment of that value by the common level of appraisal.  Notices shall be mailed at least 14 days before the time fixed for hearing.  Such personal notices shall be given in all towns and cities within the state, anything in the charter of any city to the contrary notwithstanding.  At the same time, the listers shall post notices in the town clerk’s office and in at least four other public places in the town or in the case of a city, in such other manner and places as the city charter shall provide, setting forth that they have completed and filed such book as an abstract and the time and place of the meeting for hearing grievances and making corrections.  Unless the personal notices required hereby were sent by registered or certified mail, or unless an official certificate of mailing of the same was obtained from the post office, in the case of any controversy subsequently arising it shall be presumed that the personal notices were not mailed as required.

(g)  A person who feels aggrieved by the action of the listers and desires to be heard by them, shall, on or before the day of the grievance meeting, file with them his or her objections in writing and may appear at such grievance meeting in person or by his or her agents or attorneys.  No grievance shall be allowed for a change solely to reflect a new use value set by the current use advisory board or the adjustment of that value by the common level of appraisal.  Upon the hearing of such grievance, the parties thereto may submit such documentary or sworn evidence as shall be pertinent thereto.

* * * Municipalities Allowed to Enroll Land in Other Municipalities * * *

Sec. 9.  32 V.S.A. § 3752(10) is amended to read:

(10)  “Owner” means the person who is the owner of record of any land, provided that a municipality shall not be an owner for purposes of this subchapter.  When enrolled land is mortgaged, the mortgagor shall be deemed the owner of the land for the purposes of this subchapter, until the mortgagee takes possession, either by voluntary act of the mortgagor or foreclosure, after which the mortgagee shall be deemed the owner.

Sec. 10.  32 V.S.A. § 3760 (a) is amended to read:

(a)(1)  Annually the state shall pay to each town municipality the amount necessary to limit its tax rate increase in the prior year due to the loss of municipal property tax revenue for that year based on use value of enrolled property as compared to municipal property tax revenue for that year based on fair market value of enrolled property, to zero.

(2)  The director of property valuation and review shall determine the amount of the available funds under this section to be paid to each town municipality, and a town municipality may appeal the director's decision in the same manner and under the same procedures as an appeal from a decision of a board of civil authority, as set forth in subchapter 2 of chapter 131 of this title.

(3)  On November 1 of each year, the director of property valuation and review shall pay to each municipality the amount calculated as described in this section.  If the appropriation for the year is insufficient to pay the full amount due to every town municipality under this subsection, payments in that year shall be made to such towns proportionately.

(4)  If the appropriation for the year is insufficient to pay the full amount due to any municipality for enrolled property owned by another municipality, the municipality in which the property is located may assess the other municipality and the other municipality shall pay the difference.

(5)  The director's calculation of payment amounts to municipalities shall be based on grand list values and total tax appropriations as submitted to the director for the prior year.

Sec. 11.  ELECTRONIC COORDINATION PROJECT AND REPORT

The department of information and innovation in collaboration with the division of property valuation and review, the agency of natural resources, and the agency of agriculture, food and markets, the Vermont Assessors and Listers Association, and the Vermont League of Cities and Towns shall continue in the effort to bring electronic coordination to the use value appraisal program. No later than January 15, 2009, the department shall submit a report on this project to the house committees on ways and means and on fish, wildlife and water resources and the senate committees on finance and on natural resources and energy.  The report shall address the recommendations on administrative matters of the use value appraisal task force and include a proposed budget and time frame for the different parts of the project.  The report shall include a review of different funding options to make the administration of the program self-sustainable.

Sec. 12.  OUTREACH AND EDUCATION ABOUT THE PROGRAM

(a)  The department of forests, parks and recreation, the division of property valuation and review, the agency of agriculture, food and markets, and the current use advisory board shall consult with the Vermont Assessors and Listers Association, the Vermont League of Cities and Towns, the Vermont Use Value Appraisal Coalition, the Vermont Farm Bureau, the Vermont Land Trust, the Vermont Forest Products Association, Rural Vermont, the Vermont Natural Resources Council, and other stakeholders to

(1)  develop an outreach and education program to address possible misperceptions about the program identified by the use value appraisal task force in its report. The program shall be comprehensive and shall outline a strategy to communicate with the general public, listers, potentially eligible landowners, enrolled landowners, attorneys, and realtors.

(2)  include a plan to address the areas of further investigation identified by the task force, including:

(A)  the program definitions of “agricultural land” and “farmer”;

(B)  whether there should be different valuations of land based on the kind of use of the land;

(C)  use of the Geographic Information System in the program;

(D)  review of the results of the amendment to the 20-percent rule;

(E)  whether conserved parcels managed for ecological purposes should be enrolled in the program;

(F)  ongoing monitoring of the program.

(b)  The group shall submit a detailed report on its efforts on or before January 15, 2009 to the house committees on fish, wildlife and water resources and on agriculture and the senate committees on natural resources and energy and on agriculture.

Sec. 13.  EFFECTIVE DATE

This act shall take effect upon passage except for Sec. 8, which shall apply to grand lists of April 1, 2009 and after.

House Proposal of Amendment

S. 345

An act relating to lowering the cost of workers’ compensation insurance.

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS AND PURPOSE

(a)  The general assembly finds the following:

(1)  The workers’ compensation program was established in 1915 to dispense with the concept of negligence by providing compensation to any employee who is injured on the job and to limit employers’ exposure to lawsuits for negligence in the workplace.  In addition, this program removed the need for injured employees to rely on tax-funded public assistance programs.

(2)  The National Council on Compensation Insurance, NCCI, the nation’s largest provider of workers’ compensation and employee injury data, recommends to the Vermont department of banking, insurance, securities, and health care administration proposed workers’ compensation voluntary market loss costs and assigned risk market rates by classification codes.

(3)  In March 2008, the department of banking, insurance, securities, and health care administration approved an average 4.2 percent decrease in both the voluntary market loss costs and assigned risk market rates, representing the largest decrease in a decade.  This decrease provided many Vermont employers, including sawmill, logging, and carpentry operations, hospitals, restaurants, and ski areas, with a modest decrease in their workers’ compensation premiums. Other Vermont employers with good safety records may enjoy even higher premium rate reductions.

(4)  The decrease is attributed mainly to a decline in workplace injuries.  Two major cost drivers of workers’ compensation premiums are the frequency of claims and the seriousness of claims.  Another cost driver is medical costs which are increasing more rapidly than the rate of inflation.  The duration of claims also adds to workers’ compensation costs.

(5)  Despite recent stability in workers’ compensation rates, the comparatively high cost of workers’ compensation insurance in Vermont remains an issue of great concern to many Vermont employers.

(6)  The increased implementation of safety training programs and measures by Vermont employers has reduced the frequency of workplace injuries, which is the most effective way to reduce workers’ compensation costs.

(7)  The fact that only 8.5 percent of the Vermont employers are in the residual market validates that workers’ compensation insurers perceive that the Vermont workers’ compensation program is working effectively.  The residual market is less than half the size it was five years ago indicating that many employers have found appropriate coverage in the voluntary market, in which employers can benefit from competition between carriers.  The lack of competition among carriers for certain industries such as dairy farming presents a disadvantage for those industries.

(8)   Workers’ compensation premiums for farmers are increasing while premiums for most other employer categories are going down. Farming is inherently more hazardous than many other industries, and the pool of farmers to spread the risk is small.  Agricultural workers have a higher frequency and suffer more serious work injuries than other workers, particularly those working on farms with hoofed animals.

(9)  It is important to provide incentives to improve farm safety through comprehensive training programs.  Extensive outreach and safety education will go a long way toward reducing workers’ compensation premium rates for farmers. The Vermont farm bureau, the agency of agriculture, the U.S. department of agriculture, the university of Vermont extension service, and other organizations are working to develop enhanced farm safety training programs.

(10)  A significant number of employers are improperly classifying employees as “independent contractors” either due to a lack of understanding or knowingly to avoid legal obligations under federal and state labor and tax laws governing payment of wages, unemployment insurance, workers’ compensation, and income and social security taxation.

(11)  Misclassification of employees as “independent contractors” adversely impacts the Vermont economy because it deprives workers of legal protections and benefits; reduces compliance with employment and safety standards; gives employers who misclassify an improper financial competitive advantage over law-abiding businesses; deprives the state of substantial revenue; and imposes indirect costs from decreased legitimate business activity and increased demand for social services.  A recent survey of workers’ compensation insurers conducted in compliance with No. 57 of the Acts of 2007 reveals that misclassification is a significant problem that may add 10 to 20 percent or more to the cost of workers’ compensation.

(12)  Historically, compliance and enforcement have been divided among various governmental entities, which reduces efficiency and effectiveness.  Improved cooperation, sharing information, and joint enforcement of serious violations would be effective approaches to reducing employer misclassification.

(13)  While a reduction in workers’ compensation benefits would lower workers’ compensation premiums across all class codes, this reduction would be at the expense of injured workers and provide little incentive for improving safety.

(b)  Therefore, it is the purpose of this act to address the problems of employee misclassification and miscoding, improve farm safety, and make other positive changes to the workers’ compensation laws that are intended to reduce the cost of workers’ compensation.

Sec. 2.  DEFINITIONS

For the purposes of this act:

(1)  “Misclassification” means improperly classifying employees as independent contractors for the purposes of workers’ compensation insurance or unemployment insurance, as the context dictates.

(2)  “Miscoding” means the improper categorization of employees under the national council on compensation insurance (NCCI) worker classification codes, which account for varying levels of risk attributable to different job types for the purposes of determining workers’ compensation insurance premiums.

* * * Fraud and Misclassification * * *

Sec. 3.  8 V.S.A. § 4750(b) is amended to read:

(b)  The commissioner may require an insurer to file annually its anti-fraud plan with the department and an annual summary of the insurer’s anti-fraud activities and results, including misclassification and miscoding.  A workers’ compensation insurer shall file an anti-fraud plan with the department of labor, including information about fraud investigations, referrals, or prosecutions involving Vermont workers’ compensation claims, misclassifications, and miscoding, if requested by the commissioner of labor.  Information regarding fraud investigations and referrals shall not be public unless the commissioner of labor or the attorney general commences administrative or criminal proceedings.

Sec. 4.  13 V.S.A. § 2031 is amended to read:

§ 2031.  INSURANCE FRAUD

(a)  Definitions.  As used in this section:

* * *

(2)  “Insurance policy” has the same meaning as in 8 V.S.A. § 4722(3) and includes a workers’ compensation policy issued pursuant to chapter 9 of Title 21.

(3)  “Insurer” has the same meaning as in 8 V.S.A. § 4901(2) and includes a workers’ compensation insurer pursuant to chapter 9 of Title 21.

(4)  “Person” means a natural person, company, corporation, unincorporated association, partnership, professional corporation, agency of government, or any other entity.

* * *

(g)  This section shall not apply to workers’ compensation fraud. Cases involving workers’ compensation fraud shall be prosecuted under section 2024 of this title.

(h)  The public policy of this state is that the standards of this section shall not apply or be introduced into evidence in any civil or administrative proceeding, whether to argue public policy, materiality, or for any other purpose.

Sec. 5.  CREATION OF WORKERS’ COMPENSATION EMPLOYEE CLASSIFICATION AND CODING TASK FORCE

(a)  There is created a workers’ compensation classification and coding task force to be composed of eight members to include the following:

(1)  The commissioner of labor or designee.

(2)  The commissioner of banking, insurance, securities, and health care administration or designee.

(3)  The attorney general or designee.

(4)  One member from the house committee on commerce to be appointed by the speaker.

(5)  One member of the senate committee on economic development, housing and general affairs to be appointed by the committee on committees.

(6)  A member from the insurance industry appointed by the American Insurance Association.

(7)  Two members appointed by the employer and employee members of the department of labor advisory counsel established in 21 V.S.A. § 1306 as follows:

(A)  One member who represents labor.

(B)  One member who represents management.

(b)  The task force shall meet as needed, and the legislative council shall provide administrative support.

(c)  For attendance at a meeting when the general assembly is not in session, the legislative members shall be entitled to the same per diem compensation and reimbursement of necessary expenses as provided to members of standing committees under 2 V.S.A. § 406.

(d)  The task force shall:

(1)  Investigate and analyze misclassification and miscoding of employees and offer recommendations to address the following:

(A)  Coordination, speed, and efficiency of communication among appropriate governmental entities and law enforcement organizations in the prevention, investigation, and enforcement of actual and suspected employee misclassification and miscoding.

(B)  Ways to improve outreach to and public education for businesses and labor to promote wider understanding of and compliance with the requirements for classifying and coding employees.  This outreach and education shall identify costs associated with misclassification and miscoding, help businesses identify incidents of misclassification and miscoding, and encourage filing of complaints and identification of potential violators.

(2)  The task force shall issue a progress report on or before January 1, 2009, and a final report on or before October 15, 2009.  Both reports shall be provided to the house committee on commerce and the senate committee on economic development, housing and general affairs.  The progress report shall outline the task force’s advancement in its investigation, and the final report shall outline the task force’s findings and recommendations regarding the following:

(A)  A description of progress made by state government to reduce the frequency of employee misclassification and miscoding, including the number of employers cited for violations related to misclassification and miscoding, a description of the types of misclassification and miscoding cited, the approximate number of employees affected, and the amount of wages, premiums, taxes, and other payments or penalties collected.

(B)  Administrative, legislative, or regulatory changes designed to reduce misclassification and miscoding of employees by improving public and business education, sharing information, and increasing the cooperation and efficiency of enforcement of employee misclassification.

(C)  A consistent, workable, and fair method for determining independent contractor status both in regard to workers’ compensation and unemployment compensation.

(D)  Any other issue relevant to reducing the incidences of employee misclassification and miscoding including a recommendation as to whether the task force should continue meeting and, if so, for how long.

Sec. 6.  FRAUD ENFORCEMENT STUDY; DEPARTMENT OF LABOR; DEPARTMENT OF BANKING, INSURANCE, SECURITIES, AND HEALTH CARE ADMINISTRATION

The department of labor in collaboration with the department of banking, insurance, securities, and health care administration , a participant designated by the Vermont Trial Lawyers’ Association, a participant designated by the Vermont Bar Association from defense attorneys representing employers, and the attorney general shall perform an assessment of the fraud problem and develop proposals for legislation that will improve the effectiveness and enforcement of the current fraud statutes, including specific recommendations for improving enforcement, stimulating interagency cooperation including information sharing and prosecution, and creating a fraud unit complete with proposals for staffing, reporting, structure, and funding.  The department of labor shall issue a progress report on or before February 1, 2009, and a final report on or before October 15, 2009.  Both reports shall be provided to the governor, the house committee on commerce, and the senate committee on economic development, housing and general affairs.  The progress report shall outline the department of labor’s advancement in its assessment, and the final report shall contain a comprehensive outline of the assessment and legislative proposals.

* * * Safety Incentives * * *

Sec. 7.  WORKERS’ COMPENSATION DISCOUNTS; IMPROVED EFFICIENCY AND SAFETY; STUDY; DEPARTMENT OF LABOR; DEPARTMENT OF BANKING, INSURANCE, SECURITIES, AND HEALTH CARE ADMINISTRATION

(a)  The department of labor and the department of banking, insurance, securities, and health care administration in consultation with the department of labor advisory council established in 21 V.S.A. § 1306 shall investigate and, as appropriate, propose specific legislation and administrative rules that affect the following:

(1)  Providing workers’ compensation premium discounts for employers whose employees have demonstrated the successful implementation and effectiveness of a workplace safety certification program.

(2)  Providing rate reductions for employers who implement an effective return-to-work program or a drug and alcohol prevention program, or both.

(3)  Reviewing the fairness of the distribution of workers’ compensation liability for preexisting conditions.

(4)   Surveying other state workplace safety discount programs to evaluate their effectiveness in improving workplace safety as well as their impact on premiums paid by nonparticipants.

(5)  Improving the rate of return to employment for claimants receiving permanent disability benefits by examining best practices for returning injured employees to work that have been used successfully by providers, employers, and relevant programs in Vermont and other jurisdictions.

(6)  Assuring the application of best practices to the vocational rehabilitation system in order to improve its functionality and effectiveness in increasing employability.

(7)  Identifying and facilitating the implementation of industry best practices and other methods designed to increase substantially workplace safety.   

(b)  The department of labor shall issue a progress report on or before February 1, 2009, and a final report on or before October 15, 2009.  Both reports shall be provided to the governor, the house committee on commerce, and the senate committee on economic development, housing and general affairs.  The progress report shall outline the department of labor’s advancement in its study, and the final report shall contain a comprehensive outline of the study, as well as suggestions for legislation and administrative rulemaking.

* * * First‑Aid‑Only Injuries and Deductible Policies * * *

Sec. 8.  21 V.S.A. § 640(e) is added to read:

(e)  In the case of a work‑related, first‑aid‑only injury, the employer shall file the first report of injury with the department of labor.  The employer shall file the first report of injury with the workers’ compensation insurance carrier or pay the medical bill within 30 days.  If the employer contests a claim, a first report of injury shall be forwarded to the department of labor and the insurer within five days of notice.  If additional treatment or medical visits are required or if the employee loses more than one day of work, the claim shall be promptly reported to the workers’ compensation insurer, which shall adjust the claim.  “Work‑related, first‑aid‑only‑treatment” means any one-time treatment that generates a bill for less than $750.00 and for which the employee loses no time from work except for the time for medical treatment and recovery not to exceed one day of absence from work.

Sec. 9.  21 V.S.A. § 687(e) is added to read:

(e)  All insurance carriers authorized to write workers’ compensation insurance coverage in Vermont shall make available, at the written request of the employer, a workers’ compensation insurance rate that contains a deductible provision that binds the employer to reimburse the workers’ compensation insurer for at least the first $500.00 of benefits, medical or indemnity, due to an injured employee.  Claims shall be adjusted and paid by the insurer, and the employer shall reimburse the insurer for the amount of the deductible.

* * * Evaluation of Permanent Impairment * * *

Sec. 10.  EVALUATION OF PERMANENT IMPAIRMENT; USE OF AMA GUIDES

Notwithstanding 21 V.S.A. § 648(b), the department of labor shall continue to use the American Medical Association Guides to the Evaluation of Permanent Impairment, fifth edition, until such time as the commissioner of labor, in consultation with the department of labor advisory council established in 21 V.S.A. § 1306, has evaluated an analysis of the sixth edition performed by NCCI or other appropriate rating agency to assure that adoption of the sixth edition will not have a significantly detrimental impact on injured workers entitled to permanent disability benefits.  At least 60 days before adopting the sixth edition, the department shall submit a written report to the house committee on commerce and the senate committee on economic development, housing and general affairs, outlining the analysis that formed the basis for determining that use of the sixth edition will not have a significantly detrimental impact on injured workers entitled to permanent disability benefits.

* * * Computation of Average Weekly Wage and COLA Adjustment * * *

Sec. 11.  21 V.S.A. § 650(a) and (d) are amended to read:

(a)  Average weekly wages shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the 12 26 weeks preceding an injury; but where, by reason of the shortness of the time during which the worker has been in the employment, or the casual nature of the employment, or the terms of the employment, it is impracticable to compute the rate of remuneration, average weekly wages of the injured worker may be based on the average weekly earnings during the 12 26 weeks previous to the injury earned by a person in the same grade employed at the same or similar work by the employer of the injured worker, or if there is no comparable employee, by a person in the same grade employed in the same class of employment and in the same district.  If during the period of 12 26 weeks an injured employee has been absent from employment on account of sickness or suspension of work by the employer, then only the time during which the employee was able to work shall be used to determine the employee’s average weekly wage.  If the injured employee is employed in the concurrent service of more than one insured employer or self-insurer the total earnings from the several insured employers and self-insurers shall be combined in determining the employee’s average weekly wages, but insurance liability shall be exclusively upon the employer in whose employ the injury occurred.  The average weekly wage of a volunteer firefighter, volunteer rescue or ambulance worker, volunteer reserve police officer, or volunteer as set forth in subdivision 1101(b)(4) of Title 3, who is injured in the discharge of duties as a firefighter, rescue or ambulance worker, police officer, or state agency volunteer, shall be the employee’s average weekly wage in the employee’s regular employment or vocation but the provisions of section 642 of this title relative to maximum weekly compensation and weekly net income rates, shall apply.  For the purpose of calculating permanent total or permanent partial disability compensation, the provisions relating to the maximum and minimum weekly compensation rate shall apply.  In any event, if a worker at the time of the injury is regularly employed at a higher wage rate or in a higher grade of work than formerly during the 12 26 weeks preceding the injury and with larger regular wages, only the larger wages shall be taken into consideration in computing the worker’s average weekly wages.

(d)  Compensation computed pursuant to this section shall be adjusted annually on July 1, so that such compensation continues to bear the same percentage relationship to the average weekly wage in the state as computed under this chapter as it did at the time of injury.  Temporary total or temporary partial compensation shall first be adjusted on the first July 1 following the receipt of 26 weeks of benefits.

* * * Temporary Total Two‑Year Review * * *

Sec. 12.  21 V.S.A. § 642a is added to read:

§ 642a.  TEMPORARY TOTAL; INSURER REVIEW

The employer shall review every claim for temporary total disability benefits that continues for more than 104 weeks.  No later than 30 days after 104 weeks of continuous temporary total disability benefits have been paid, the employer shall file with the department and the claimant a medical report from a physician that evaluates the medical status of the claimant, the expected duration of the disability, and when or if the claimant is expected to return to work.  If the evaluating physician concludes that the claimant has reached a medical end result, the employer shall file a notice to discontinue.

* * * Vocational Rehabilitation * * *

Sec. 13.  21 V.S.A. § 641(a)(1) and (c) are amended to read:

(1)  The employer shall designate a vocational rehabilitation provider from a list provided by the commissioner to initially provide services. Thereafter, absent good cause, the employee may have only one opportunity to select another vocational rehabilitation provider from a list provided by the commissioner upon giving the employer written notice of the employee’s reasons for dissatisfaction with the designated provider and the name and address of the provider selected by the employee. 

(c)  Any vocational rehabilitation plan for a claimant presented to the employer shall be deemed valid if the employer was provided an opportunity to participate in the development of the plan and has made no objections or changes within 21 days after submission.

(d)  The commissioner may adopt rules necessary to carry out the purpose of this section.

Sec. 14.  VOCATIONAL REHABILITATION; DEPARTMENT OF LABOR

(a)  The commissioner of labor shall consult with the department of labor advisory council established in 21 V.S.A. § 1306 to review current practices and activities in the following areas:

(1)  Insurance carriers providing timely notification to the department of labor of all claimants who have been out of work for 90 consecutive days and the department requiring immediate administrative enforcement for any failure to provide that notification.

(2)  Ensuring that all lost‑time claimants receive simple, understandable notices of their rights to and how to request vocational rehabilitation services no later than their receipt of their first workers’ compensation indemnity benefits.

(3)  Enabling timely review and resolution of insurance coverage and payment issues and other disputes arising in the development and implementation of vocational rehabilitation services.

(4)  Developing performance standards to measure the success of vocational rehabilitation plans and other appropriate approaches to increase the number of injured workers returning to suitable employment.

(b)  The department shall issue a written report to the house committee on commerce and the senate committee on economic development, housing and general affairs on or before March 15, 2009.  The report shall outline any deficiencies discovered under subsection (a) of this section and any rules to be adopted to solve the deficiencies.

* * * Attorney Fees * * *

Sec. 15.  21 V.S.A. § 678 is amended to read:

§ 678. COSTS; ATTORNEY FEES

* * *

(b)  In appeals to the superior or supreme courts, if the claimant, if he or she prevails, he or she shall be entitled to reasonable attorney’s attorney fees as approved by the court, and interest at the rate of 12 percent per annum on that portion of any award the payment of which is contested.  Interest shall be computed from the date of the award of the commissioner.

* * *

(d)  In cases that are not resolved pursuant to a formal hearing, the commissioner may award reasonable attorney fees if the claimant has retained an attorney in response to an actual or effective denial of a claim, a hearing has been requested, and thereafter payments are made to the claimant as a result of the attorney’s efforts. 

* * * Assistance to Claimants * * *

Sec. 16.  ASSISTANCE TO CLAIMANT; BARGAINING AGENT; RULEMAKING; DEPARTMENT OF LABOR

The department of labor shall adopt a rule that permits a representative of the claimant’s bargaining unit to provide informal assistance to a workers’ compensation claimant in regard to any claim for workers’ compensation benefits in all aspects except at a formal hearing.

* * * Farm Safety Programs * * *

Sec. 17.  FARM SAFETY PROGRAMS; AGENCY OF AGRICULTURE, FOOD AND MARKETS; STUDIES

(a)  The secretary of agriculture, food and markets in collaboration with the department of labor and the University of Vermont extension service shall:

(1)  In collaboration with farm organizations and other relevant organizations develop farm safety and occupational health best management practices for the protection of farm workers and shall develop educational programs that will enable farm workers to understand and comply with those best management practices.

(2)  In collaboration with the department of banking, insurance, securities, and health care administration and representatives of the insurance industry investigate the feasibility of developing a safety certification program for farms.  The investigation shall consider approaches to providing a premium reduction for farmers certified under such a safety certification program.

(3)  In collaboration with the University of Vermont extension service rural and agricultural vocational rehabilitation program (RAVR) develop rural and agricultural vocational rehabilitation best management practices for use by vocational rehabilitation counselors.

(b)  Administrative support shall be provided by the legislative council and the joint fiscal office.

(c)  The results and recommendations resulting from the studies required under subsection (a) of this section shall be presented in a written report to the senate committees on agriculture and on economic development, housing and general affairs and to the house committees on agriculture and on commerce on or before February 1, 2009.

Sec. 18.  FIRST-AID-ONLY INJURIES AND DEDUCTIBLE POLICIES;

STUDY

By July 1, 2012, the department of labor shall report to the house committee on commerce and the senate committee on economic development, housing and general affairs on the utilization of 21 V.S.A. § 640(e) and 21 V.S.A. § 687(e).  The report shall summarize the frequency of use, the insurer experience, and realized cost savings of the provisions, as well as a recommendation of whether the provisions should be retained in statute, repealed, or terminated at a future point certain through the addition of a sunset provision.

Sec. 19.  DEPARTMENT OF LABOR STUDY OF SAFETY STANDARDS FOR FORESTRY AND FOREST PRODUCTS INDUSTRIES

(a)  The general assembly finds that workers’ compensation insurance rates for the forestry and forest products industries are significantly higher than industry rates in neighboring states and significantly higher than those of the vast majority of other industries within the state.

(b)  The commissioner of labor, in consultation with the commissioner of forests, parks and recreation shall convene a working group to develop safety standards for the forestry and forest products industries that will help reduce injury rates and workers’ compensation insurance rates for the industries.  In developing the safety standards, the commissioner shall use the safety standards adopted in other states, including Maine, as a guide.  On or before February 1, 2009, the commissioner of labor shall report to the house and senate committees on commerce, the house and senate committees on natural resources and energy, and the house and senate committees on agriculture with the results of the working group.  The report shall include:

(1)  Proposed safety standards for the forestry and forest products industries;

(2)  A recommended methodology for implementing the proposed safety standards in the forestry and forest products industries;

(3)  An estimate of the cost to implement the proposed safety standards, including the cost to the department of labor, the department of forests, parks and recreation, insurance providers, and members of the forestry and forest products industries; 

(4)  A proposed schedule for implementing the proposed safety standards.

(c)  The working group shall consist of:

(1)  The commissioner of labor or his or her designee;

(2)  The commissioner of forests, parks and recreation or his or her designee;

(3)  One member of the senate, appointed by the senate pro tempore;

(4)  Two members of the house of representatives, appointed by the speaker of the house;

(5)  Two members of the forestry industry appointed by the governor;

(6)  One member of the forest products industry appointed by the governor; and

(7)  One member of the insurance industry, appointed by the governor.

(d)  The working group may elect a chair and vice chair and may hold public hearings.  The department of labor and the department of forests, parks and recreation shall provide support for the working group.

(e)  All members of the committee shall serve on the committee for the duration of the working group unless circumstances dictate a permanent replacement, except that the legislative members shall serve for the term of their election.  Vacancies shall be appointed in the same manner as an original appointment.

(f)  Legislative members of the working group are entitled to per diem payment and reimbursement for expenses pursuant to 2 V.S.A. § 406.


House Proposal of Amendment

S. 357

An act relating to domestic violence.

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

(a)  The general assembly finds that domestic violence directly affects the lives of Vermont’s citizens each year.  Domestic violence is a pervasive community problem which requires a comprehensive approach by the state, the public, and community providers to prevent, respond to, and remedy its devastating effects.  Domestic violence is consistently the leading cause of homicides in Vermont each year.  According to the 2008 Vermont Fatality Review Commission Report data covering 1994–2007, 50 percent of all Vermont homicides during the past 13 years were related to domestic violence.  In 2007, 64 percent of all Vermont homicides were domestic-violence-related. Reported occurrences of domestic violence continue to rise, and many incidents continue to go unreported.  The 16-member programs of the Vermont Network Against Domestic and Sexual Violence responded to 15,259 hotline crisis calls and served 8,337 victims of domestic violence in 2006.  An increasing number of families in Vermont are homeless due to domestic violence.  The member programs of the Vermont Network Against Sexual and Domestic Violence sustained a 27-percent increase in bed-nights in 2007. 

(b)  The general assembly recognizes the importance of specific intervention programs for domestic violence offenders in breaking the generational cycle of domestic violence.  The general assembly recommends that persons convicted of domestic assault be referred to appropriate intervention programs provided by the department of corrections or certified by the Vermont council on domestic violence.  In instances where certified programs are not available, alternative programs should be provided with a focus placed on victim safety and offender accountability.

Sec. 2.  12 V.S.A. § 5131 is amended to read:

§ 5131.  DEFINITIONS

As used in this chapter:

* * *

(5)  “Sexually assaulted the plaintiff” means that the defendant engaged in conduct that meets elements of lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602, sexual assault as defined in 13 V.S.A. § 3252, or aggravated sexual assault as defined in 13 V.S.A. § 3253, use of a child in a sexual performance as defined in 13 V.S.A. § 2822, or consenting to a sexual performance as defined in 13 V.S.A. § 2823 and that the plaintiff was the victim of the offense.

* * *

Sec. 3.  12 V.S.A. § 5134 is amended to read:

§ 5134.  EMERGENCY RELIEF

(a)  In accordance with the Vermont Rules of Civil Procedure, a person other than a family or household member as defined in 15 V.S.A. § 1001(2) may file a complaint for a temporary order against stalking or sexual assault. Such complaint shall be filed during regular court hours.  The plaintiff shall submit an affidavit in support of the order.  The court may issue a temporary order under this chapter ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has stalked or sexually assaulted the plaintiff.  An order may be granted requiring the defendant to refrain from stalking or sexually assaulting the plaintiff and to refrain from interfering with the plaintiff’s personal liberty  The court may order the defendant to stay away from the plaintiff or the plaintiff’s children, or both, and may make any other such order it deems necessary to protect the plaintiff or the plaintiff’s children, or both.

* * *

Sec. 4.  13 V.S.A. § 1030 is amended to read:

§ 1030.  VIOLATION OF ABUSE PREVENTION ORDER OR AN ORDER AGAINST STALKING OR SEXUAL ASSAULT

(a)  A person who commits an act prohibited by a court or who fails to perform an act ordered by a court in violation of an abuse prevention order issued under chapter 21 of Title 15 or chapter 69 of Title 33, or an order against stalking or sexual assault issued under chapter 178 of Title 12, after the person has been served notice of the contents of the order as provided in those chapters; or a foreign abuse prevention order or an order against stalking or sexual assault issued by a court in any other state, federally recognized Indian tribe, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia; shall be imprisoned not more than one year or fined not more than $5,000.00, or both.

(b)  A person who is convicted of a second or subsequent offense under this section or is convicted of an offense under this section and has previously been convicted of domestic assault under section 1042 of this title, first degree aggravated domestic assault under section 1043 of this title, or second degree aggravated domestic assault under section 1044 of this title shall be imprisoned not more than three years or fined not more than $25,000.00, or both.

* * *

Sec. 5.  13 V.S.A. § 1042 is amended to read:

§ 1042.  DOMESTIC ASSAULT

Any person who attempts to cause or wilfully or recklessly causes bodily injury to a family or household member, or wilfully causes a family or household member to fear imminent serious bodily injury shall be imprisoned not more than one year 18 months or fined not more than $5,000.00, or both.

Sec. 6.  13 V.S.A. § 1044 is amended to read:

§ 1044.  SECOND DEGREE AGGRAVATED DOMESTIC ASSAULT

(a)  A person commits the crime of second degree aggravated domestic assault if the person:

(1)  commits the crime of domestic assault and causes bodily injury to another person and such conduct violates:

(A)  specific conditions of a criminal court order in effect at the time of the offense imposed to protect that other person;

(B)  a final abuse prevention order issued under section 1103 of Title 15;

(C)  an order against stalking or sexual assault issued under chapter 178 of Title 12; or

(D)  an order against abuse of a vulnerable adult issued under chapter 69 of Title 33.

(2)  commits a second or subsequent offense of domestic assault, which causes bodily injury the crime of domestic assault; and

(A)  has a prior conviction within the last ten years for violating an abuse prevention order issued under section 1030 of this title; or

(B)  has a prior conviction for domestic assault under section 1042 of this title.

(b)  A person who commits the crime of second degree aggravated domestic assault shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

(c)  Conduct constituting the offense of second degree aggravated domestic assault under this section shall be considered a violent act for the purpose of determining bail.

Sec. 7.  13 V.S.A. § 1031 is added to read:

§ 1031.  INTERFERENCE WITH ACCESS TO EMERGENCY SERVICES

A person who, during or after the commission of a crime, willfully prevents or attempts to prevent a person from seeking or receiving emergency medical assistance, emergency assistance from a third party, or emergency assistance from law enforcement shall be imprisoned not more than one year or fined not more than $5,000.00 or both.

Sec. 8.  13 V.S.A. § 2602 is amended to read:

§ 2602.  LEWD OR LASCIVIOUS CONDUCT WITH CHILD

(a)(1)  No person shall willfully and lewdly commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of 16 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of such person or of such child.

(2)  This section shall not apply if the person is less than 19 years old, the child is at least 15 years old, and the conduct is consensual.

(b)  A person who violates subsection (a) of this section shall be:

(1)  For a first offense, imprisoned not less than two years and not more than 15 years, and, in addition, may be fined not more than $5,000.00, or both.

(2)  For a second offense, imprisoned not less than five years and a maximum term of life, and, in addition, may be fined not more than $25,000.00, or both.

(3)  For a third or subsequent offense, imprisoned not less than ten years and a maximum term of life, and, in addition, may be fined not more than $25,000.00, or both.

* * *

(e)  Any prior conviction for sexual assault or aggravated sexual assault shall be considered a prior offense for purposes of sentencing enhancement.  This section shall not apply to a person who was convicted of sexual assault committed when the person was younger than 19 years of age and which involved consensual sex with a child at least 15 years of age.

Sec. 9.  15 V.S.A. § 668a is amended to read:

§ 668a.  ENFORCEMENT OF VISITATION

(a)  When a noncustodial parent who is ordered to pay child support or alimony and who is awarded visitation rights fails to pay child support or alimony, the custodial parent shall not refuse to honor the noncustodial parent’s visitation rights.

(b)  When a custodial parent refuses to honor a noncustodial parent’s visitation rights, the noncustodial parent shall not fail to pay any ordered child support or alimony.

(c)  If a custodial parent refuses to honor a noncustodial parent’s visitation rights, the court shall enforce such rights unless it finds good cause for the failure or that a modification of the visitation rights is in the best interests of the child.  Unless restoration of the visitation is not in the best interests of the child, enforcement of the visitation rights shall include the restoration of the amount of visitation improperly denied.  When a party files a motion for enforcement of parent-child contact under this subsection, the court shall conduct a hearing within 30 days of service of the motion.

(d)  A person who violates this section may be punished by contempt of court or other remedies as the court deems appropriate, including awarding attorney’s fees and costs to the prevailing party.

(e)(1)  If a custodial parent refuses to honor a noncustodial parent’s visitation rights without good cause, the court may modify the parent-child contact order if found to be in the best interests of the child.  Good cause shall include a pattern or incidence of domestic or sexual violence, a history of failure to honor the visitation schedule agreed to in the parent child contact order, or reasonable fear for the child or the custodial parent’s safety.

Good cause shall include:

(A)  a pattern or incidence of domestic or sexual violence;

(B)  a reasonable fear for the child’s or the custodial parent’s safety; or

(C)  a history of failure to honor the visitation schedule agreed to in the parent-child contact order.

(2)  A custodial parent, upon a showing of good cause as defined in subdivision (1)(A) or (B) of this subsection, may receive an ex parte order suspending a noncustodial parent’s visitation rights until a court hearing is held. A hearing shall be held within 10 days from the issuance of the order. 

(f)  All parent-child contact orders issued by the family court in connection with a divorce or parentage proceeding shall bear the following statement:  “A PERSON WHO FAILS TO COMPLY WITH ALL TERMS OF THE CURRENT ORDER GOVERNING PARENT-CHILD CONTACT MAY BE SUBJECT TO CONTEMPT OF COURT CHARGES. THE COURT MAY IMPOSE ADDITIONAL REMEDIES, INCLUDING A MODIFICATION OF THE CURRENT PARENT-CHILD CONTACT ORDER IF FOUND TO BE IN THE BEST INTERESTS OF THE CHILD.” 

Sec. 10.  15 V.S.A. § 1103 is amended to read:

§ 1103.  REQUESTS FOR RELIEF

(a)  Any family or household member may seek relief from abuse by another family or household member on behalf of him or herself or his or her children by filing a complaint under this chapter.  The plaintiff shall submit an affidavit in support of the order.

(b)  Except as provided in section 1104 of this title, the court shall grant relief only after notice to the defendant and a hearing.  The plaintiff shall have the burden of proving abuse by a preponderance of the evidence.

(c)  If the court finds that the defendant has abused the plaintiff and that there is a danger of further abuse, the court shall make such orders as it deems necessary to protect the plaintiff, the children, or both, which may include the following: (1)  The court shall make such orders as it deems necessary to protect the plaintiff, the children, or both, if the court finds that the defendant has abused the plaintiff, and:

(A)  there is a danger of further abuse; or

(B)  the defendant is currently incarcerated and has been convicted of one of the following:  murder, attempted murder, kidnapping, domestic assault, aggravated domestic assault, sexual assault, aggravated sexual assault, stalking, aggravated stalking, lewd or lascivious conduct with child, use of a child in a sexual performance, or consenting to a sexual performance.

(2)  In determining whether there is a danger of further abuse, the court may consider the defendant’s past conduct within the prior ten years as relevant evidence, including instances of prior abuse as defined in section 1101 of Title 15, or threatening behavior as defined in section 5131 of Title 12.

(3)  The court order may include the following:

(1)(A)  an order that the defendant refrain from abusing the plaintiff, his or her children or both and from interfering with their personal liberty, including restrictions on the defendant’s ability to contact the plaintiff or the children in person, by phone or by mail and restrictions prohibiting the defendant from coming within a fixed distance of the plaintiff, the children, the plaintiff’s residence, or other designated locations where the plaintiff or children are likely to spend time;

(2)(B)  an order that the defendant immediately vacate the household and that the plaintiff be awarded sole possession of a residence;

(3)(C)  a temporary award of parental rights and responsibilities in accordance with the criteria in section 665 of this title;

(4)(D)  an order for parent-child contact under such conditions as are necessary to protect the child or the plaintiff, or both, from abuse.  An order for parent-child contact may if necessary include conditions under which the plaintiff may deny parent-child contact pending further order of the court;

(5)(E)  if the court finds that the defendant has a duty to support the plaintiff, an order that the defendant pay the plaintiff’s living expenses for a fixed period of time not to exceed three months;

(6)(F)  if the court finds that the defendant has a duty to support the child or children, a temporary order of child support pursuant to chapter 5 of this title, for a period not to exceed three months.  A support order granted under this section may be extended if the relief from abuse proceeding is consolidated with an action for legal separation, divorce, or parentage;

(7)(G)  an order concerning the possession, care and control of any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household.

* * *

Sec. 11.  15 V.S.A. § 1105 is amended to read:

§ 1105.  SERVICE

(a)  A complaint or ex parte temporary order or final order issued under this chapter shall be served in accordance with the rules of civil procedure and may be served by any law enforcement officer.  Abuse orders shall be served at the earliest possible time and shall take precedence over other summonses and orders.  Orders shall be served in a manner calculated to insure the safety of the plaintiff.  Methods of service which include advance notification to the defendant shall not be used.  The person making service shall file a return of service with the court stating the date, time and place at which the order was delivered personally to the defendant.  A defendant who attends a hearing held under section 1103 or 1104 of this title at which a temporary or final order under this chapter is issued, and who receives notice from the court on the record that the order has been issued, shall be deemed to have been served.

* * *

Sec. 12.  15 V.S.A. § 665a is added to read:

§ 665a.  CONDITIONS OF PARENT-CHILD CONTACT IN CASES INVOLVING DOMESTIC VIOLENCE

(a)  If within the prior ten years, one of the parents has been convicted of domestic assault or aggravated domestic assault against the other parent, or has been found to have committed abuse against a family or household member, as defined in section 1101 of this title, the court shall award parent-child contact to that parent under such conditions as it finds necessary and appropriate to ensure the safety and protection of the child and the parent who is a victim of domestic violence.

(b)  In a parent-child contact order issued under subsection (a) of this section, a court may:

(1)  order an exchange of a child to occur in a protected setting;

(2)  order parent-child contact supervised by another person or agency;

(3)  order the perpetrator of domestic violence to participate in, to the satisfaction of the court, a program of intervention for perpetrators, where available, or other designated counseling as a condition of the visitation;

(4)  if alcohol or drugs were involved in the domestic abuse, order the perpetrator of domestic violence to abstain from being under the influence of alcohol or controlled substances without a prescription during the visitation and for 24 hours preceding parent-child contact;

(5)  order the perpetrator of domestic violence to pay a fee to defray the costs of supervised parent-child contact, provided that the perpetrator can afford to pay the fee;

(6)  prohibit overnight parent-child contact;

(7)  impose any other condition that is deemed necessary or appropriate to provide for the safety of the child, the victim of domestic violence, or another family or household member.

(c)  Whether or not parent-child contact is allowed, the court may order the address of the child and the victim to be kept confidential.

(d)  If a court allows a family or household member to supervise

parent-child contact, the court shall establish conditions to be followed during

parent-child contact.

Sec. 13.  15 V.S.A. chapter 21, subchapter 4 is added to read:

Subchapter 4.  Vermont Council on Domestic Violence

§ 1171.  CREATION OF VERMONT COUNCIL ON DOMESTIC VIOLENCE

There is created the Vermont council on domestic violence.  The council shall provide leadership for Vermont’s statewide effort to eradicate domestic violence.

§ 1172.  PURPOSE; POWERS; DUTIES

(a)  The council shall:

(1)  facilitate opportunities for dialogue, advocacy, education, and support among state agencies, advocacy groups, and the public;

(2)  collect, review, and analyze data and information relating to domestic violence;

(3)  provide assistance in developing effective responses to domestic violence, including model policies and procedures, prevention and education initiatives, and domestic-violence-related programs for the criminal justice and human services sectors; specifically, the council shall work with the department of state’s attorneys and the department of corrections to develop recommendations for practice in evidence-based prosecution, risk assessment with domestic violence offenders, the use of deferred sentences in domestic violence cases, standardized probation conditions for domestic violence offenders, appropriate programming options for domestic violence offenders, and strategies for addressing victims of domestic violence who commit crimes as a result of the coercion of a batterer;

(4)  recommend changes in state programs, laws, administrative regulations, policies, and budgets related to domestic violence;

(5)  establish and maintain standards for intervention programs for perpetrators of domestic violence, and develop a process for certifying that programs are complying with the standards;

(6)  review and comment upon legislation relating to domestic violence introduced in the general assembly at the request of any member of the general assembly or on its own initiative; and

(7)  study the issue of employment discrimination against victims of domestic violence and suggest model workplace protections and policies.

(b)  The council shall collaborate with the Vermont fatality review commission to develop strategies for implementing the commission’s recommendations.

(c)  The council shall make a biennial report to the general assembly, the governor, the supreme court, and the people of Vermont explaining all relevant data about domestic violence collected by the council, and evaluating the strengths and weaknesses of Vermont’s current domestic violence intervention response strategies.

§ 1173.  COMPOSITION AND MEETINGS

(a)  The council shall consist of the following members to be appointed as follows:

(1)  To be appointed by the governor:

(A)  one member of the public who shall be a survivor of domestic violence;

(B)  a representative from the same-sex domestic violence service provider community;

(C)  a representative from the deaf and disability service provider community;

(D)  a representative from the department of state’s attorneys;

(E)  a prosecutor from one of the STOP Domestic Violence units;

(F)  a member of the Vermont clergy;

(G)  one member of the public representing the interests of children exposed to domestic violence.

(2)  To be appointed by the chief justice of the Vermont supreme court:

(A)  five members of the judiciary, one of whom may be a magistrate, one of whom may be an assistant judge, and one of whom may be a court manager;

(B)  one guardian ad litem;

(C)  a representative of Vermont Legal Aid;

(D)  a representative of the Vermont bar experienced in family law.

(3)  The following members:

(A)  the secretary of human services or designee;

(B)  the director of the Vermont criminal information center or designee;

(C)  the defender general or designee;

(D)  the attorney general or designee;

(E)  the executive director of the Vermont center for crime victims services or designee;

(F)  the director of the Vermont network against domestic and sexual violence or designee;

(G)  the executive director of the criminal justice training council or designee;

(H)  the executive director of the Vermont commission on women or designee;

(I)  a representative from each county domestic violence task force;

(J)  a representative from Vermont’s supervised visitation coalition;

(K)  a representative from the Vermont police chiefs’ association;

(L)  a representative from the Vermont sheriffs’ association;

(M)  a representative from the Vermont coalition of batterer intervention services;

(N)  the commissioner of the department for children and families or designee;

(O)  the commissioner of the department of public safety or designee;

(P)  the commissioner of the department of corrections or designee; and

(Q)  the commissioner of the department of education or designee.

(b)  The council may establish any committees necessary to carry out its duties.

(c)  The council shall meet at least quarterly to conduct its business.

Sec. 14.  20 V.S.A. § 2365 is added to read:

§ 2365.  DOMESTIC VIOLENCE TRAINING

(a)  In order to remain certified, law enforcement officers shall receive by 2010 at least eight hours of domestic violence training in a program approved by the Vermont criminal justice training council and the Vermont network against sexual and domestic violence.

(b)  Law enforcement officers shall receive domestic violence retraining every two years in a program approved by the Vermont criminal justice training council.

(c)  The Vermont police academy shall employ a domestic violence trainer.

Sec. 15.  33 V.S.A. § 4917 is amended to read:

§ 4917.  MULTI-DISCIPLINARY TEAMS; EMPANELING

(a)  The commissioner of social and rehabilitation services, or his or her designee may empanel a multi-disciplinary team or a special investigative multi-task force team or both wherever in the state there may be a probable case of child abuse or neglect which warrants the coordinated use of several professional services.

(b)  The commissioner of social and rehabilitation services, or his or her designee, in conjunction with professionals and community agencies, shall appoint members to the multi-disciplinary or special investigative multi-task force teams which may include persons who are trained and engaged in work relating to child abuse or neglect such as medicine, mental health, social work, nursing, day care, education, law, or law enforcement.  Additional persons may be appointed when the services of those persons are appropriate to any particular case.

(c)  The empaneling of a multi-disciplinary or special investigative

multi-task force team shall be authorized in writing and shall specifically list the members of the team.  This list may be amended from time to time as needed as determined by the commissioner or his or her designee.

Sec. 16.  STUDY OF HOUSING DISCRIMINATION AGAINST VICTIMS OF DOMESTIC AND SEXUAL VIOLENCE

(a)  A committee is established to study the issue of housing discrimination against victims of domestic and sexual violence.

(b)  The committee shall consist of:

(1)  one member appointed by the agency of human services;

(2)  one member appointed by the Vermont public housing agency;

(3)  one member appointed by the Vermont apartment owners’ association;

(4)  one member appointed by Vermont legal aid;

(5)  one member appointed by the Champlain valley office of economic opportunity;

(6)  one member appointed by the Vermont department of housing and community affairs;

(7)  one member appointed by the Vermont human rights commission; and

(8)  one member appointed by the Vermont network against domestic and sexual violence.

(c)  The committee shall convene its first meeting not later than

September 1, 2008.  The executive director of the Vermont human rights commission is designated to convene the initial meeting.  The Vermont human rights commission shall provide administrative support to the committee.  The committee may utilize the expertise of nonmembers in its work.  The committee shall report its findings to the senate committees on judiciary and on economic development, housing and general affairs and the house committees on judiciary and on general, housing and military affairs no later than December 15, 2008.  The report shall include an analysis of policies adopted by other states and recommendations to the general assembly about how to respond to the problem of housing discrimination.

Sec. 17.  STUDY OF THE HARASSMENT AND BULLYING OF STUDENTS IN VERMONT SCHOOLS

(a)  A committee is established to study the issue of harassment and bullying in Vermont schools.  The committee shall examine:

(1)  the need for further training of educators and school staff to recognize and appropriately respond to the harassment and bullying of students;

(2)  the need for legislative enactments to address cyber-bullying;

(3)  state laws and regulations regarding harassment and bullying;

(4)  school policies and procedures regarding harassment and bullying; and

(5)  any other issues regarding harassment and bullying that the committee deems relevant.

(b)  The committee shall also study the issue of cyber-bullying of Vermont students and recommend measures to address this growing and destructive phenomenon.

(c)  The committee shall consist of:

(1)  one member appointed by the Vermont department of education;

(2)  one member appointed by the Vermont school boards association;

(3)  one member appointed by the Vermont superintendents association;

(4)  one member appointed by the Vermont principals association;

(5)  one member appointed by the Vermont national education association;

(6)  one member appointed by the Vermont human rights commission;

(7)  one member appointed by the Vermont commission on women;

(8)  one member appointed by outright Vermont;

(9)  one member appointed by the Vermont ecumenical council;

(10)  one member appointed by the ALANA community organization;

(11)  one member appointed by the Vermont office of attorney general;

(12)  one law enforcement officer knowledgeable in the investigation of computer crime to be appointed by the Vermont department of public safety;

(13)  two members with expertise and experience in school issues, one to be appointed by the speaker of the house and one to be appointed by the president pro tempore of the senate;

(14)  two youths, one to be appointed by the speaker of the house and one to be appointed by the pro tempore of the senate; and

(15)  one member appointed by the American Civil Liberties Union of Vermont.

(d)  The committee shall convene its first meeting no later than

September 1, 2008.  The executive director of the Vermont human rights commission is designated to convene the initial meeting.  The Vermont human rights commission shall provide administrative support to the committee.  The committee may utilize the expertise of non-members in its work. 

(e)  The committee shall report its findings to the senate committees on judiciary and on education, and to the house committees on judiciary and on education no later than December 15, 2008.  The report shall include a strategic plan to reduce the prevalence of harassment and bullying in Vermont schools.

Sec. 18.  13 V.S.A. § 7282 is amended to read:

§ 7282.  ASSESSMENT

(a)  In addition to any penalty or fine imposed by the court or judicial bureau for a criminal offense or any civil penalty imposed for a traffic violation, including any violation of a fish and wildlife statute or regulation, violation of a motor vehicle statute, or violation of any local ordinance relating to the operation of a motor vehicle, except violations relating to seat belts and child restraints and ordinances relating to parking violations, the clerk of the court or judicial bureau shall levy an additional fee of:

* * *

(8)(A)  For any offense or violation committed after June 30, 2006, but before July 1, 2008, $26.00, of which $18.75 shall be deposited in the victims’ compensation special fund and $2.25 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20.

(B)  For any offense or violation committed after June 30, 2008, $35.00, of which $27.75 shall be deposited in the victims’ compensation special fund and $2.25 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20.

* * *

Sec. 19.  8 V.S.A. § 4080f is amended to read:

§ 4080f.  CATAMOUNT HEALTH

(a)  As used in this section:

* * *

(9)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur, and had no private insurance or employer-sponsored coverage that includes both hospital and physician services within 12 months prior to the month of application, or lost private insurance or employer-sponsored coverage during the prior 12 months for any of the following reasons:

(A)  the The individual’s private insurance or employer-sponsored coverage ended because of:

(i)  loss of employment, unless the employer has terminated its employees for the primary purpose of discontinuing employer-sponsored coverage and establishing their eligibility for Catamount Health;

(ii)  death of the principal insurance policyholder;

(iii) divorce or dissolution of a civil union;

(iv)  no longer qualifying as a dependent under the plan of a parent or caretaker relative; or

(v)  no longer receiving COBRA, VIPER, or other state continuation coverage; or .

(B)  college- College- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, or otherwise terminated studies; or

(C)(i)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency of human services with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisory, member of the clergy, or health care provider, as defined in section 9402 of Title 18.  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent of the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

(ii)  Subdivision (i) of this subdivision (C) shall take effect upon issuance by the Centers for Medicare and Medicaid Services of approval of an amendment to the Global Commitment for Health Medicaid Section 1115 Waiver allowing for a domestic violence exception to the Catamount Health waiting period.

Sec. 20.  33 V.S.A. § 1973 is amended to read:

§ 1973.  VERMONT HEALTH ACCESS PLAN

(a)  The agency of human services or its designee shall establish the Vermont health access plan (VHAP) pursuant to a waiver of federal Medicaid law.  The plan shall remain in effect as long as a federal 1115 demonstration waiver is granted or renewed.

(b)  The purpose of the Vermont health access plan is to provide health care coverage for uninsured or underinsured low income Vermonters.  The agency of human services or its designee shall establish rules regarding eligibility and administration of the plan.

(c)  An individual who has been enrolled in an approved

employer-sponsored insurance plan with premium assistance under section 1974 of this title shall not be subject to a 12-month waiting period before becoming eligible for the Vermont health access plan as provided for in subdivision 1974(d)(1).

(d)  An individual who has been enrolled in Catamount Health, with or without premium assistance, shall not be subject to a 12-month waiting period before becoming eligible for the Vermont health access plan.

(e)  For purposes of this section, “uninsured” means:

(1)  an An individual with household income, after allowable deductions, at or below 75 percent of the federal poverty guideline for households of the same size; .

(2)  an An individual who had no private insurance or

employer-sponsored coverage that includes both hospital and physician services within 12 months prior to the month of application; or .

(3)  an An individual who lost private insurance or employer-sponsored coverage during the prior 12 months for any of the following reasons:

(A)  the The individual’s coverage ended because of:

(i)  loss of employment;

(ii)  death of the principal insurance policyholder;

(iii)  divorce or dissolution of a civil union;

(iv)  no longer qualifying as a dependent under the plan of a parent or caretaker relative; or

(v)  no longer receiving COBRA, VIPER, or other state continuation coverage; or .

(B)  college- College- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, or otherwise terminated studies; or

(C)(i)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency of human services with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisory, member of the clergy, or health care provider, as defined in section 9402 of Title 18.  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent of the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

(ii)  Subdivision (i) of this subdivision (C) shall take effect upon issuance by the Centers for Medicare and Medicaid Services of approval of an amendment to the waiver set forth in subsection (a) of this section allowing for a domestic violence exception to the VHAP waiting period.

Sec. 21.  33 V.S.A. § 1974 is amended to read:

§ 1974.  EMPLOYER-SPONSORED INSURANCE; PREMIUM ASSISTANCE

* * *

(c)  Uninsured individuals; premium assistance.

(1)  For the purposes of this subsection:

* * *

(B)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur and had no private insurance or employer-sponsored coverage that includes both hospital and physician services within 12 months prior to the month of application, or lost private insurance or employer-sponsored coverage during the prior 12 months for the following reasons:

(i)  the individual’s coverage ended because of:

(I)  of employment, unless the employer has terminated its employees for the primary purpose of discontinuing employer-sponsored coverage and establishing their eligibility for Catamount Health;

(II)  death of the principal insurance policyholder;

(III)  divorce or dissolution of a civil union;

(IV)  no longer qualifying as a dependent under the plan of a parent or caretaker relative; or

(V)  no longer receiving COBRA, VIPER, or other state continuation coverage; or .

(ii)  college- College- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, or otherwise terminated studies; or

(iii)(I)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency of human services with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisory, member of the clergy, or health care provider, as defined in section 9402 of Title 18.  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent of the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

(II)  Subdivision (I) of this subdivision (B)(iii) shall take effect upon issuance by the Centers for Medicare and Medicaid Services of approval of an amendment to the waiver set forth in subsection (f) of this section allowing for a domestic violence exception to the premium assistance program waiting period.

§ 9432(8).  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent by the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the required information.

* * *

Sec. 22.  33 V.S.A. § 1982 is amended to read:

§ 1982.  DEFINITIONS

As used in this subchapter:

(1)  “Catamount Health” means the health benefit plan offered under section 4080f of Title 8.

(2)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur and had no private insurance or employer-sponsored coverage that includes both hospital and physician services within 12 months prior to the month of application, or lost private insurance or employer-sponsored coverage during the prior 12 months for the following reasons:

(A)  the individual’s private insurance or employer-sponsored coverage ended because of:

(i)  loss of employment, unless the employer has terminated its employees for the primary purpose of discontinuing employer-sponsored coverage and establishing their eligibility for Catamount Health;

(ii)  death of the principal insurance policyholder;

(iii)  divorce or dissolution of a civil union;

(iv)  no longer qualifying as a dependent under the plan of a parent or caretaker relative; or

(v)  no longer receiving COBRA, VIPER, or other state continuation coverage; or  .

(B)  college- College- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, or otherwise terminated studies; or

(C)(i)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency of human services with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisory, member of the clergy, or health care provider, as defined in section 9402 of Title 18.  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent of the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

(ii)  Subdivision (i) of this subdivision (C) shall take effect upon issuance by the Centers for Medicare and Medicaid Services of approval of an amendment to the Global Commitment for Health Medicaid Section 1115 Waiver allowing for a domestic violence exception to the Catamount Health premium assistance waiting period.

* * *

Sec. 23.  APPROPRIATIONS

(a)  The amount of $690,000.00 from the victims’ compensation fund created by 13 V.S.A. § 5359 shall be available in FY 2009 for the center for crime victim services for the Vermont network against domestic and sexual violence.  This amount shall be used to fund domestic violence prevention programs and services in order to break the generational cycle of domestic violence and to support the victims of domestic and sexual violence.

(b)  Of the appropriation in subsection (a) of this section, the amount of $76,805.00 from the victims’ compensation fund shall be available for the Vermont police academy to employ a domestic violence training and curriculum development coordinator.

Sec. 24.  PILOT PROGRAM

The general assembly recognizes the significant impact of domestic violence on victims and their children.  The department for children and families, division of economic services, may expand emergency and general assistance pilot programs and may develop at least one pilot program specifically addressing the needs of victims of domestic violence.

Sec. 25.  DOMESTIC VIOLENCE EXCEPTION TO HEALTH CARE WAITING PERIOD

The secretary of human services shall request approval from the Centers for Medicare and Medicaid Services for an amendment to the Global Commitment for Health Medicaid Section 1115 Waiver to implement the domestic violence exception to the health care waiting periods set forth in Secs. 21, 22, 23, and 24 of this act.

Sec. 26.  32 V.S.A. § 602(2)(B) is amended to read:

(B) The following charges are exempt from the provisions of this subchapter , except as provided in subsection 605(f) of this subchapter:

* * *

Sec. 27.  32 V.S.A. § 605(f) is added to read:

     (f) Each fee report submitted in accordance with subsections (b)(1), (2) or (3) of this section shall also include a report of every surcharge, assessment, add-on, fee, tax, or other type of charge imposed or administered by any state agency, the receipts of which are not deposited into the general fund, the transportation fund or the education fund, regardless of whether the charge falls within the definition of “fee” in section 602 of this subchapter.  A report under this subsection (f) shall include for each charge all of the information described in subsections (c) and (d) of this section.

House Proposal of Amendment

S. 364

An act relating to a comprehensive vertical audit and reliability assessment of the Vermont Yankee nuclear plant.

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  LEGISLATIVE INTENT AND PURPOSE

(a)  No. 160 of the Acts of the 2005 Adj. Sess. (2006) reconfirmed the obligation and authority of the general assembly to examine the reliability of the nuclear power station of Entergy Nuclear Vermont Yankee (ENVY) in order to determine if it should be authorized to operate in this state beyond the expiration of its current operating license on March 21, 2012.

(b)  The general assembly finds that Entergy Nuclear Vermont Yankee has had one of the highest percentage power increases of any plant in the country and now is applying for a 20-year life extension beyond its 40-year design.  It is therefore the intent of the general assembly to determine on behalf of the people of the state of Vermont the reliability issues associated with operating ENVY for an additional 20 years after its scheduled closure in 2012.

(c) The general assembly finds that Entergy Nuclear Vermont Yankee provides approximately one-third of the power used by the citizens of Vermont.  It has been a reliable generation source for Vermont.  However, in 2007 it experienced two operational difficulties that required that it reduce power or go to zero power production.  When the station reduces power output or does not produce power, Vermont utilities have to purchase market power, often at a greater price to our citizens. It is in the State’s economic interests to ensure that the station is a reliable source of power.

(d)  It is the purpose of this act to provide for a thorough, independent, and public assessment of the reliability of the systems, structures, and components of the Entergy Nuclear Vermont Yankee facility.  The comprehensive reliability assessment required by this act shall:

(1)  Achieve the goals and objectives set out in Sec. 2 of this act;

(2)  Assess the reliability of specific systems identified in Sec. 3 of this      act;

(3)  Address the specific audit inquiries with respect to those systems, as set out in Sec. 4 of this act; and

(4)  Employ audit methodologies as set out in Sec. 5 of this act.

Sec. 2.  GOALS AND OBJECTIVES

Giving due consideration to the following areas consistent with Vermont’s legitimate state interests, the goals and objectives of an independent comprehensive reliability assessment of the Vermont Yankee nuclear facility are to:

(1)  Assess the conformance of the facility to its design and licensing bases, for operating at up to 120 percent of its originally intended power production level, including appropriate reviews at the plant's site and its corporate offices;

(2)  Identify all relevant deviations, exemptions, or waivers, or any combination of these from any regulatory requirements applicable to Vermont Yankee and from any regulatory requirements applicable to new nuclear reactors, and verify whether adequate operating margins are retained despite the cumulative effect of any deviations, exemptions, or waivers for the present licensed power level for the proposed period of license extension;

(3)  Assess the facility's operational performance, and the facility’s reliability for continued power production, giving risk perspectives where appropriate;

(4)  Evaluate the effectiveness of licensee self-assessments, corrective actions, and improvement plans; and

(5)  Determine the cause or causes of any significant operational shortcomings identified and draw conclusions on overall performance.

Sec. 3.  SPECIFIC SYSTEMS TO BE ASSESSED

(a) The comprehensive reliability assessment shall include an in-depth inspection of at least the seven whole plant systems listed in this subsection. 

(1)  An electrical system:  the back-up or stand-by electrical system, including the diesel generators, batteries, the Vernon dam tie, and all associated electrical connections and controls.

(2)  An emergency system:  the emergency core cooling system, including both high- and low-pressure injection systems.

(3)  A mechanical system:  the condensate feed water system, including the condenser.

(4)  The primary containment system, including all associated systems, structures, and components, such as dry well shell, torus supports, residual heat removal system, isolation valves, containment spray, and adequate suction.

(5)  A heat removal system:  the cooling towers and alternate cooling system, including both cooling tower cells used for normal cooling and those that are emergency-related towers.

(6)  A cooling system dependent upon Connecticut River water: alternate cooling system and emergency service water.

(7) An underground piping system that carries radionuclides.

(b) Additional systems may be selected for audit by the public oversight panel established in Sec. 6 of this act in consultation with the department of public service.                   (c)  In addition, the audit shall include an investigation and assessment of a generic systems issue:  cable separation — separation of safety systems, including physical and electrical separation.

Sec. 4.  SPECIFIC AUDIT INQUIRIES

The audit of each system shall include physical and documentation examination of the entire system, including each system’s relevant components.  Specific inquiries to be addressed shall include, but are not limited to, the following:

(1)  Initial conditions.  What were the codes and standards with which

the system was designed to comply and what was the design basis?  Is the design of the system in keeping with the expected initial conditions and its design basis?

(2)  Procurement.  If there were procurement changes, was a new set of review calculations completed for those procurement changes and were those procurement changes compared against the original design and all of its calculations?

(3)  Installation - “as-built.”  Do plant records adequately represent the as-built condition of the plant?  Are all changes reflected in all documents from the design basis through as-built and through current operations?

(4)  Operation.  What changes or compensations have been made to accommodate unanticipated operations outcomes?  Have those changes, compensations, and accommodations been duly noted in procedural manuals and logs?  Have root cause analyses been conducted to reflect unanticipated outcomes?  If root cause analyses were not conducted in any particular instance, why not?  If root cause analyses were not conducted in any particular instance, have any unanticipated system operations outcomes been duly corrected or compensated in all safety and reliability operations and procedures?

(5)  Testing.  When systems have undergone periodic tests, what have been the results?  Are resulting corrective actions reflected in all documents from design through as-built through current operations?

(6)  Inspection.  When systems have undergone periodic inspections, have those inspections been successful?  Are the resulting changes reflected in all documents from design through as-built through current operations?

(7)  Maintenance.  Has the management system for aging components been adequately maintained to assure the components meet the design basis?  Is there a track-change system in place to determine what components have been reviewed, repaired, or replaced?  Is there an accurate system in place to record when those reviews and repairs were completed?  Is there a program of operations or a schedule of operations that specifically delineates what aging management systems, as identified in the industry-wide database, are being reviewed and when?  Is adequate time allowed in each outage for aging management review and adequate maintenance?  Are the aging factors discovered actually being repaired in a timely manner?

(8)  Repairs.  Have repairs been performed which assure the system will operate as expected?  Are all repairs completed as soon as possible?  Are repairs sufficiently in-depth to effectively invest in the plant and its operational systems?

(9)  Modifications.  Do all modifications to the system also comply with the system's original design basis?  Have all procedure manuals and operations manuals been updated to reflect the impact of any modifications made to any system?

(10)  Redesign.  Have changes made to the plant since its original construction been reviewed to ensure that safety margins have not been reduced?  Has each component modified for uprate been reviewed to assure that operational margins have not been reduced and to assure that design basis redundancy has not been compromised?   Have any repairs, maintenance, or modifications impacted the original design of the redundant safety systems?  Are all systems still “single failure proof”?

(11)  Seismic analysis.  When was the most recent modern,

computer-generated, finite element seismic analysis performed on each of the seven vertical slice systems examined in the audit?  Does ENVY remain capable of withstanding design basis events beyond the original 40-year design life of the plant to reflect the age-related changes in the plant and weight changes from all modifications during the first 35 years of operation?

(12)  Training.  Has an adequate review and evaluation of operator training and operating procedures been conducted?  Has each change been adequately reflected in the operations procedures?  Have operations personnel been adequately trained in all modifications to all systems?  Are operations personnel frequently updated and trained regarding any troublesome issues other plants have uncovered which may compromise operations and safe shutdown?

(13)  Corrective action programs.  What corrective action programs have been established for each of the systems audited?  Have the corrective actions taken been properly integrated in the corrective action program?  Have corrective actions been taken in a timely manner?  Where recorded items have been deferred, have they been appropriately evaluated for risks and potential consequences of deferral and appropriately tracked while awaiting resolution?

Sec. 5.  DESIGN AND METHODOLOGY

     (a) The department of public service, in consultation with the public oversight panel, shall design the work plan and establish a time frame for the comprehensive reliability assessment.  The following methodology shall be employed unless with respect to any specific system, component or procedure the department, in consultation with the oversight panel, determines that employing such methodology would be inefficient or ineffective: 

          (1)  Vertical investigation.  The audit shall commence with an examination of the initial start-up conditions of the Vermont Yankee plant and examine the subsequent history of its modifications, maintenance, repairs, and current operations.  Such vertical inspection shall be made of each whole plant system selected for assessment.

          (2)  Horizontal investigation.  At any point in the vertical inspection at which an emergency-related function, the operability, the design, the performance, or aging issues, or other unanalyzed or nonconforming conditions are encountered, a thorough horizontal or lateral exploration shall be conducted to determine extent-of-condition and root cause with attention to evaluating licensee performance in problem identification and resolution, testing, engineering, in-service inspection, and maintenance.

(b)  In addition to the vertical and horizontal inspections prescribed in this section, the department in consultation with the public oversight panel may include in the design of the audit the investigation or assessment of any other system, component, or procedure utilizing any other methodology that the department and oversight panel deem necessary to provide a complete and comprehensive evaluation of the reliability of the Vermont Yankee nuclear facility.

Sec. 6.  PUBLIC OVERSIGHT PANEL

(a)  The comprehensive reliability assessment required by this act shall be conducted with the maximum amount of transparency and public oversight and involvement.  To that end, a public oversight panel is created to include five members who have demonstrated expertise in nuclear technology or nuclear regulation to be selected as follows:

(1) Three members shall be appointed by the speaker of the house, the president pro tempore of the senate and the governor, with their unanimous consensus on each appointment; and 

 (2)  Two members shall be selected jointly by the three members appointed pursuant to subdivision (1) of this subsection.

(b)  The public oversight panel shall be appointed as soon as possible after the effective date of this act.   The panel shall elect a chair and vice chair from among its members, and upon its request, the panel shall have the assistance of the department of public service for administrative support.

(c) The public oversight panel shall have access to all records and documents consulted and generated in developing and conducting the comprehensive reliability assessment and to records and documents generated in any other audit of the Vermont Yankee Nuclear facility pertinent to the comprehensive reliability assessment. Because the public oversight panel will be reviewing and discussing proprietary and security related documents, the public oversight panel shall not be considered a public body pursuant to 1 V.S.A. § 310 nor shall it be subject to the access to public records statutes embodied in 1 V.S.A. §§ 315-320. After the public oversight panel publicly reports its findings and evaluation to the general assembly as required in subsection (d) of this section, the panel may be subject to public access requests for material relied upon in making its findings and report with redactions of proprietary or security information as needed.

(d)  No later than January 30, 2009, the public oversight panel shall publicly report its findings and evaluation to the general assembly for the purpose of informing the legislature in making its determination whether the Entergy Nuclear Vermont Yankee plant should be authorized to operate in the state beyond the expiration of its current license on March 21, 2012.

(e)  The evaluation and recommendations of the public oversight panel and the report and findings of the audit shall be made available to the director of public advocacy of the department of public service, and may be used by the director of public advocacy as deemed appropriate by the department to represent the interests of the public in any proceedings before the public service board relating to a certificate of public good for relicensing ENVY for operation beyond March 21, 2012 or for decommissioning, or other related proceedings.

Sec. 7.  AUDIT INSPECTION TEAM

The department of public service in consultation with the public oversight panel shall select an audit inspection team of a sufficient number of qualified consultants, experts, and technicians as necessary to conduct all or any part of the comprehensive reliability assessment required by this act. The consultants, experts and technicians selected shall not at any time during the three years prior to the effective date of this act have worked for or at the Vermont Yankee facility, Entergy Nuclear Vermont Yankee, or any other nuclear power plant owned and operated by Entergy Nuclear Vermont Yankee or any of its affiliates.

Sec. 8.  Expenses and Costs

(a)  The members of the public oversight panel are entitled to receive compensation as determined jointly by the speaker of the house, the president pro tempore of the senate, and the secretary of administration.  Members of the public oversight evaluation panel shall also be entitled to reimbursement for actual and necessary expenses related to the performance of their duties.  The compensation and costs incurred by the public oversight panel shall be charged to the petitioner for a license extension under the provisions of

30 V.S.A. §§ 20 and 21.

(b)  The compensation and costs incurred by the audit inspection team and other expenses incurred in the conduct of the comprehensive reliability assessment shall be charged to the petitioner for a license extension under the provisions of 30 V.S.A. §§ 20 and 21.

Sec. 9.  EFFECTIVE DATE

(a) This act shall take effect from passage.

(b) Notwithstanding the July 1, 2008 commencement date in 30 V.S.A. §248(e)(2), added by No. 160 of the Acts of  2006, the Public Service Board may at any time after the passage of this act commence proceedings on any petition to operate a nuclear plant beyond the date permitted in its existing certificate of public good.

House Proposal of Amendment to Senate Proposal of Amendment

H. 859

An act relating to increasing substance abuse treatment, vocational training, and transitional housing for offenders in order to reduce recidivism, increase public safety, and reduce corrections costs.

The House proposes to the Senate to amend the proposal of amendment by striking it in its entirety and inserting in lieu thereof the following:

Sec. 1.  FINDINGS AND INTENT

(a)  The general assembly finds that:

(1)  Vermont’s incarcerated population is growing at an unsustainable rate.

(2)  Property and drug offenders are the fastest growing segment of the prison population.  Between 2000 and 2006, over one-half the increase in the felony prison population was due to property and substance abuse offenses.

(3)  Seventy-seven percent of those sentenced for a property or drug felony have a substance abuse disorder.  Two-thirds of them report having received mental health treatment in the past.  Fifty-five percent report being frequently unemployed prior to incarceration.

(4)  Of those incarcerated for a property or drug felony, only 13 percent are receiving treatment.

(b)  The general assembly further finds that:

(1)  Each month, approximately 70 inmates meet the criteria for reentering the community under the supervision of the commissioner of corrections on conditional reentry status.  However, almost one-half are not released because of insufficient housing options.

(2)  Studies show that the length of sentences served by offenders does not affect their recidivism rates.  Therefore, current law authorizes the commissioner of corrections to release certain offenders on reintegration furlough 90 days prior to the minimum sentence date.  However, on average, eligible inmates serve only 53 days on reintegration furlough status.  If all those who are eligible serve the full 90 days of reintegration status, the result could be a savings of up to 90 corrections beds.

(c)  The general assembly intends:

(1)  to reduce recidivism, increase public safety, and reduce the cost to the state of incarcerating offenders by increasing substance abuse treatment services, vocational training, and transitional housing available to offenders, and by establishing processes for reducing incarceration time when appropriate; and

(2)  that the provisions of this act are a long-range plan to guide expenditures from additional corrections savings in future years.

Sec. 2.  28 V.S.A. § 102(b) is amended to read:

(b)  The commissioner is charged with the following powers:

* * *

(5)  To order the assignment and transfer of persons committed to the custody of the commissioner to correctional facilities, including out-of-state facilities.

* * *

Sec. 3.  28 V.S.A. § 202 is amended to read:

§ 202.  POWERS AND RESPONSIBILITIES OF THE COMMISSIONER REGARDING PROBATION

The commissioner shall be charged with the following powers and responsibilities regarding the administration of probation:

(1)  To maintain general supervision of persons placed on probation, and to prescribe rules and regulations, consistent with any orders of the court, governing the conduct of such persons;

(2)  To supervise the administration of probation services and establish policies and standards and make rules and regulations regarding probation investigation, supervision, case work and case loads, record keeping, and the qualification of probation officers;

(3)  To use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on probation.  Transdermal alcohol monitoring equipment shall be used for such purposes as preventing persons whose licenses have been suspended for DUI from operating motor vehicles on Vermont highways.   

Sec. 4.  28 V.S.A. § 205(c) is added to read:

(c)(1)  Unless the court in its discretion finds that the interests of justice require additional standard and special conditions of probation, when the court orders a specific term of probation for a qualifying offense, the offender shall be placed on administrative probation which means that the only conditions of probation shall be that the probationer:

(A)  register with the department of correction’s probation and parole office in his or her district;

(B)  notify the probation officer of his or her current address each month;

(C)  within 72 hours, notify the department of corrections if probable cause is found for a criminal offense during the term of probation; and

(D)  not be convicted of a criminal offense during the term of probation.

(2)  As used in this subsection, “qualifying offense” means:

(A)  Unlawful mischief under 13 V.S.A. § 3701.

(B)  Retail theft under 13 V.S.A. §§ 2575 and 2577.

(C)  Operating after suspension or revocation of license under 23 V.S.A. § 674(a).

(D)  Bad checks under 13 V.S.A. § 2022.

(E)  Theft of services under 13 V.S.A. § 2582.

(F)  Disorderly conduct under 13 V.S.A. § 1026, unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7).

(G)  Theft of rented property under 13 V.S.A. § 2591.

(H)  Operation without consent of owner under 23 V.S.A. § 1094(a).

(I)  Petit larceny under 13 V.S.A. § 2502.

(J)  Negligent operation of a motor vehicle under 23 V.S.A.

§ 1091(a).

(K)  False reports to law enforcement under 13 V.S.A. § 1754.

(L)  Setting fires under 13 V.S.A. § 508.

(M)  A first offense of a minor’s misrepresenting age, procuring, possessing, or consuming liquors under 7 V.S.A. § 657.

(N)  Simple assault by mutual consent under 13 V.S.A. § 1023(b) unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7).

(O)  Unlawful trespass under 13 V.S.A. § 3705(a).

(P)  A first offense of possession under 18 V.S.A. § 4230(a)(1).

(3)  Nothing in this subsection shall prohibit a court from requiring participation in the restorative justice program established in chapter 12 of this title.

Sec. 5.  28 V.S.A. § 252(b) is amended and (d) is added to read:

(b)  When imposing a sentence of probation, the court may, as a condition of probation, require that the offender:

* * *

(16)  Satisfy any other conditions reasonably related to his or her rehabilitation.  The court shall not impose a condition prohibiting the offender from engaging in any legal behavior unless the condition is reasonably related to the offender’s rehabilitation or necessary to reduce risk to public safety.

(d)  The commissioner shall review the record of each probationer serving a specified term during the month prior to the midpoint of that probationer’s specified term and may file a motion requesting the sentencing court to dismiss the probationer from probation or deduct a portion of the specified term from the period of probation if the offender has successfully completed a program or has attained a goal or goals specified by the conditions of probation.  The commissioner may include in the motion a request that the court deduct a portion of the specified term for each condition completed or goal attained. Any motion under this section shall be made pursuant to a rule adopted by the commissioner under 3 V.S.A. chapter 25 which shall provide that the decision to make or refrain from making a motion shall be made at the sole discretion of the commissioner and shall not be subject to appeal.

Sec. 6.  28 V.S.A. § 105 is added to read:

§ 105.  OFFENDERS IN THE COMMUNITY; CASELOAD CAPACITY

(a)  The department shall define and document, in writing, its management practices and processes to ensure that there are sufficient trained correctional field staff to support the success of offenders supervised in the community and to assure that department functions are not transferred to local law enforcement agencies.

(b)  The department shall reassess annually the appropriateness of its written documentation as defined in this section.  This reassessment shall take into account changes in best practice, legislation, and technological advances.

(c)  In order to ensure that caseload capacities allow for adequate supervision of offenders and for the support of successful reintegration of incarcerated offenders, the department shall implement procedures which address the following:

(1)  Ongoing review of local caseload capacities in order to support adequate supervision of these offenders.

(2)  Assurances that caseloads are of such a number and kind as to allow for adequate supervision of these offenders.

(3)  Case management practices that support the efficient termination, discharge, or transfer to a more appropriate level of supervision of probation cases.

(d)  The department shall review offender characteristics and distinguish those offenders who require less supervision to ensure public safety from those who require more intensive and intrusive intervention.  This review of offender characteristics shall include the offender’s risk to reoffend using DOC assessment instruments that reflect best practice at the time caseload decisions are being considered.  Assessment technology shall also take into account caseload composition and psychosocial risk factors that may influence the risk to reoffend.

(e)  The department shall review caseloads and task assignment processes when assigning offenders to correctional staff.  In general, field sites will maintain larger caseloads of those offenders who require less supervision to ensure public safety, and smaller caseloads of those who require more intensive and intrusive supervision.

(f)  When assigning caseloads to correctional staff, the department shall consider related noncasework activities, such as co-facilitation of treatment and education groups, conducting investigations and related report writing, and supporting the activities of community reparative or reentry boards.

(g)  The department shall review the severity of offenses and assess the risk to reoffend of all offenders older than 21 years of age under its jurisdiction in the community and assign one of the following levels of supervision to each offender:

(1)  Risk management supervision, which shall mean supervision at a level of intensity that includes case planning and measures to reduce the risk of reoffense.

(2)  Response supervision, which shall mean monitoring of the offender’s compliance with conditions of probation or parole, including staff responding to violation behavior.

(3)  Administrative supervision, which shall mean monitoring of the offender’s address and compliance with the law.

(h)  An offender may be reassigned to a lower or higher supervision level after a reassessment of the offender’s risk.

(i)  All offenders requiring administrative supervision may be supervised on caseloads consistent with the capacity of automated status reporting systems as established by the department.

(j)  In order to ensure that public safety is not compromised and that offenders in the community who are under the custody of the commission have supervision adequate to minimize the chances for recidivism, the commissioner shall develop standards which shall include a range of maximum and minimum caseload sizes for correctional officers. 

Sec. 7.  CASELOAD SIZE STANDARDS; REPORT

On or before September 1, 2008, the commissioner of corrections shall report on the standards developed pursuant to 28 V.S.A. § 105(j) to the corrections oversight committee.

Sec. 8.  28 V.S.A. § 403(1) is amended to read:

(1)  To supervise and control persons placed on parole, subject to the rules and orders of the parole board as to the conditions of parole.  The commissioner may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on parole.  Transdermal alcohol monitoring equipment shall be used for such purposes as preventing persons whose licenses have been suspended for DUI from operating motor vehicles on Vermont highways;

Sec. 9.  28 V.S.A. § 723(c) is added to read:

(c)  Prior to release under this section, the department shall screen and, if appropriate, assess each felony drug and property offender for substance abuse treatment needs using an assessment tool designed to assess the suitability of a broad range of treatment services, and it shall use the results of this assessment in preparing a reentry plan.  The department shall attempt to identify all necessary services in the reentry plan and work with the offender to make connections to necessary services prior to release so that the offender can begin receiving services immediately upon release. 

Sec. 10.  28 V.S.A. § 808(a)(8)(E) is added to read:

(8) To prepare for reentry into the community.

* * *

(E)  Prior to release under this subdivision (8), the department shall screen and, if appropriate, assess each felony drug and property offender for substance abuse treatment needs using an assessment tool designed to assess the suitability of a broad range of treatment services, and it shall use the results of this assessment in preparing a reentry plan.  The department shall attempt to identify all necessary services in the reentry plan and work with the offender to make connections to necessary services prior to release so that the offender can begin receiving services immediately upon release. 

Sec. 11.  28 V.S.A. § 808(b) is amended to read:

(b)  An inmate granted a furlough pursuant to this section may be accompanied by an employee of the department, in the discretion of the commissioner, during the period of the inmate’s furlough.  The department may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on furlough.

Sec. 12.  33 V.S.A. § 708 is amended to read:

§ 708.  TREATMENT AND SERVICES

* * *

(d)  A person judged by a law enforcement officer to be incapacitated, and who has not been charged with a crime, may be lodged in protective custody in a lockup or community correctional center secure facility not operated by the department of corrections for up to 24 hours or until judged by the person in charge of the facility to be no longer incapacitated, if and only if:

(1)  The person refuses to be transported to an appropriate facility for treatment, or if once there, refuses treatment or leaves the facility before he or she is considered by the responsible staff of that facility to be no longer incapacitated; or

(2)  No approved substance abuse treatment program with detoxification capabilities and no staff physician or other medical professional at the nearest licensed general hospital can be found who will accept the person for treatment.

(e)  No person shall be lodged in a lockup or community correctional center secure facility under subsection (d) of this section without first being evaluated by a substance abuse crisis team, a designated substance abuse counselor, a clinical staff person of an approved substance abuse treatment program with detoxification capabilities or a professional medical staff person at a licensed general hospital emergency room and found to be indeed incapacitated.

(f)  No lockup or community correctional center secure facility shall refuse to admit an incapacitated person in protective custody whose admission is requested by a law enforcement officer, in compliance with the conditions of this section.

(g)  Notwithstanding subsection (d) of this section, a person under 18 years of age who is judged by a law enforcement officer to be incapacitated and who has not been charged with a crime shall not be held at a lockup or community correctional center.  If needed treatment is not readily available the person shall be released to his or her parent or guardian.  If the person has no parent or guardian in the area, arrangements shall be made to house him or her according to the provisions of chapter 55 of this title.  The official in charge of an adult jail or lockup shall notify the director of the office of drug and alcohol abuse of any person under the age of 18 brought to an adult jail or lockup pursuant to this chapter.

(h)  If an incapacitated person in protective custody is lodged in a lockup or community correctional center secure facility, his or her family or next of kin shall be notified as promptly as possible.  If the person is an adult and requests that there be no notification, his or her request shall be respected.

(i)  A taking into protective custody under this section is not an arrest.

(j)  Law enforcement officers or , persons responsible for supervision in a lockup or community correctional center or secure facility, members of a substance abuse crisis team or , and designated substance abuse counselors who act under the authority of this section are acting in the course of their official duty and are not criminally or civilly liable therefor, unless for gross negligence or willful or wanton injury.

Sec. 13.  33 V.S.A. § 708a is added to read:

§ 708a.  INCARCERATION FOR INEBRIATION PROHIBITED

A person who has not been charged with a crime shall not be incarcerated in a facility operated by the department of corrections on account of the person’s inebriation.

Sec. 14.  TRANSITION UNITS

(a)  The general assembly intends in this act to provide to offenders who are eligible for release into the community the opportunity for a successful transition.

(b)  The department shall report to the corrections oversight committee on or before September 30, 2008, on:

(1)  the feasibility and costs of establishing within the Northwest State Correctional Facility a transition unit which is modeled on the transition unit at the Chittenden Regional Correctional Facility which enables inmates to work in the community while residing in the facility; and

(2)  the feasibility and costs of incorporating a transition unit into any facility where renovations are necessary to implement the provisions of this act.

Sec. 15.  CORRECTIONAL FACILITIES REORGANIZATION; PLAN

(a)  Findings.  Department of corrections expenditures on correctional services including out-of-state beds grew from $93,255,650.00 in fiscal year 2004 to $120,533,309.00 in fiscal year 2008.  The amount of funding proposed for fiscal year 2009 is $123,589,833.00.  This rate of increase has been and remains unsustainable.

(b)  Action.  In order to reduce the unsustainable increases in the expenditures of the department of corrections, the commissioner of corrections and commissioner of buildings and general services, in consultation with the corrections oversight committee, shall develop and evaluate options for reorganization of correctional facilities which will result in savings.  It is the intent of the general assembly to reinvest savings in services which will reduce recidivism, increase public safety, and reduce the cost to the state of incarcerating offenders.  On or before January 15, 2009, the two commissioners shall report to the senate and house committees on judiciary,  on appropriations, the senate committee on institutions, and the house committee on corrections and institutions on options considered, the preferred option, and cost estimates for the preferred plan.  Among other options, the commissioners shall consider:

(1)  Close the Dale Correctional Facility in Waterbury, change the mission of the Southeast State Correctional Facility in Windsor to be a therapeutic community with substance abuse treatment and vocational training services in a work camp model, and close sections of the Northwest State Correctional Facility in St. Albans and renovate the facility to house and provide services to women.

(2)  Renovate the Northwest State Correctional Facility in St. Albans to be a job training center for male inmates which may include a work camp and other more secure job training programs.

(3)  Close the Dale Correctional Facility in Waterbury and expand the Southeast State Correctional Facility in Windsor to be the facility for all female inmates in the state.

(c)  An incumbent in a classified position that will be eliminated due to the closing of a correctional facility due to action taken under this section, who does not accept an existing vacant classified position, and who exercises the contractual right to fill an existing temporary position at a department facility shall receive his or her classified position base salary and the benefits of the bargaining unit to which that temporary position would be assigned if permanent, with the exceptions of scheduling days of work, shift assignment, and post assignment. The rights established by this subsection shall be available until January 1, 2012, or until the affected employee accepts an existing classified position, whichever occurs first.  Except as otherwise provided in this subsection, all existing state employee contract provisions and protections shall remain fully in force for any affected corrections employee covered by the contract.

Sec. 16.  BUDGETARY SAVINGS; ALLOCATIONS IN FISCAL YEAR 2009 AND FISCAL YEAR 2010

(a)  It is the intent of the general assembly to achieve savings in the department of corrections budget which will be reinvested in substance abuse screening, assessment, and treatment and reentry support to result in reduced recidivism.

(b)  In fiscal year 2009, from within the amounts appropriated to the department of corrections from the general fund, the department shall spend $600,000 as follows:

(1)  The amount of $100,000.00 shall be to increase the capacity of the department of corrections’ intensive substance abuse program (ISAP) to provide services to those offenders with drug abuse disorders who are on preapproved furlough status under 28 V.S.A. § 808(a)(7).

(2)  The amount of $212,000.00 shall be for entering into contracts with several community‑based substance abuse treatment providers in different geographic regions of the state to provide the substance abuse treatment services to persons on conditional reentry status pursuant to subchapter 1A of chapter 11 of 28 V.S.A. or furlough pursuant to 28 V.S.A. § 808.

(3)  The amount of $200,000.00 shall be to fund the establishment of a screening and assessment pilot program at a location approved by the court administrator to:

(A)  conduct a voluntary and confidential screening and assessment, when screening indicates that an assessment is appropriate, for substance abuse and mental health treatment needs at the time of arraignment of individuals charged with felony property, drug, or fraud offenses;

(B)  conduct a mandatory screening and assessment, when screening indicates that an assessment is appropriate, for substance abuse and mental health treatment needs following adjudication and prior to sentencing of individuals found guilty of felony property, drug, or fraud offenses;

(C)  provide the results of any screening and assessment conducted under this section to the judge following adjudication and prior to sentencing so that the judge can use the information to determine the level of treatment to be provided while the individual is in the custody of the commissioner of corrections; and

(D)  enable the commissioner to gather data regarding the prevalence of co-occurring substance abuse and mental health disorders.   

(4)  The amount of $88,000.00 shall be to assess offenders for substance abuse treatment needs prior to release.

(c)  Based on a recommendation from the commissioner of corrections and the corrections oversight committee, the joint fiscal committee may authorize further spending of funds from the fiscal year 2009 corrections appropriation for all or part of the amounts of this subsection, in the order listed in this subsection.  In fiscal year 2010, from within the amounts appropriated to the department of corrections from the general fund, the department shall reinvest a portion of the savings identified by the commissioner of corrections and the corrections oversight committee as follows:

(1)  The amount of $150,000.00 shall be to provide grants to community providers of transitional housing to increase the number of beds available by 10 beds for three to six months of housing for at least 20 offenders reentering the community on furlough pursuant to 28 V.S.A. § 808 or on conditional reentry pursuant to subchapter 1A of chapter 11 of Title 28;

(2)  The amount of $200,000.00 shall be to develop the capacities of community substance abuse treatment providers to work effectively with offenders and to function efficiently as a collaborative system;

(3)  The amount of $1,200,000.00 shall be to provide grants to community providers to increase by 60 the number of beds available for at least 120 offenders who will be staying in the transitional housing for three to six months before reentering the community on furlough pursuant to 28 V.S.A. § 808 or conditional reentry, pursuant to subchapter 1A of chapter 11 of Title 28.  The new transitional housing shall include a range from lightly supervised with no treatment programs to heavily supervised with wrap-around treatment programs.  Of the amount appropriated in this subdivision $200,000.00 shall be used to:

(A)  provide life skills programming;

(B)  expand housing readiness, search, and retention services; and

(C)  expand housing assistance funding which may be granted to housing authorities and other community agencies in response to requests for proposals or memorandums of understanding entered into in accordance with department policy and directives;

(4)  The amount of $365,000.00 shall be to expand the ISAP program to include a residential component for those who have been furloughed to the community pursuant to 28 V.S.A. § 808(a)(7); and

(5)  The amount necessary to continue funding the screening and assessment pilot program established in subdivision (a)(3) of this section for one more year.

(d)  The joint fiscal office shall track and report to the joint fiscal committee in January and July of 2009 savings in the corrections budget resulting from the provisions of this act.

Sec. 17.  STATEWIDE DRUG COURT STUDY

The court administrator, the defender general, the executive director of the department of state’s attorneys and sheriffs, the deputy commissioner of the department of health in charge of the office of alcohol and drug abuse programs, and the commissioner of mental health shall report to the house and senate committees on judiciary by December 15, 2008, on the advisability and feasibility of expanding the drug court program to every county in the state.  The report shall address:

(1)  the financial costs of expanding the drug court program statewide;

(2)  the workforce impact which a statewide expansion of the program would have and whether new staff would be required;

(3)  whether current state facilities have the capacity to support statewide expansion and whether and where any new facilities would be required; and

(4)  any other matter deemed relevant to the issue of statewide drug court expansion.    

Sec. 18.  PUBLIC INEBRIATES TASK FORCE

(a)  A public inebriates task force is established.  The task force shall consist of the following members:

(1)  Two members employed by the office of alcohol and drug abuse programs appointed by the commissioner of the department of health.

(2)  Two substance abuse treatment providers appointed by the substance abuse treatment providers association.

(3)  One member appointed by the department of public safety.

(4)  One member appointed by the Vermont police association.

(5)  One member appointed by the Vermont League of Cities and Towns.

(6)  Two members appointed by the Vermont medical society who shall be hospital emergency department personnel.

(7)  Two members appointed by the Vermont recovery network.

(8)  Two employees of the department of corrections appointed by the commissioner of the department of corrections.

(9)  A representative of the Vermont Association of Hospitals and Health Systems.

(b)  The task force shall report to the senate and house committees on judiciary, institutions, and appropriations no later than January 1, 2010 with a plan to ensure that public inebriates are given appropriate care rather than incarcerated.  The plan shall ensure the regional availability of supportive voluntary and secure accommodations for public inebriates by January 1, 2011, and shall include a timetable for providing reimbursement of expenses to programs that house and maintain public inebriates.

Sec. 19.  ACCOUNTABILITY; REPORTS

(a)  On or before January 15, 2009, the commissioner of corrections and the court administrator shall report to the senate and house committees on judiciary, and the house committee corrections and institutions on implementing the screening and assessment pilot program authorized and funded in Sec. 16(b)(3) of this act, as well as recommendations for continuing the program or expanding the program or both.

(b)  On or before January 15, 2010, the commissioner of corrections shall report to the senate committee on judiciary, the house committee on corrections and institutions, and the house committee on judiciary on:

(1)  the prevalence of co-occurring mental health and substance abuse disorders among those committed to the custody of the commissioner of corrections;

(2)  the success of and problems encountered in:

(A)  expanding the ISAP program pursuant to Sec. 16(b)(1) of this act;

(B)  developing reentry plans which identify services needed by offenders upon release, and in working with community providers to ensure that each offender receives those services immediately upon release;

(C)  implementing the screening and assessment pilot program authorized and funded in Sec. 16(b)(3) of this act, as well as recommendations for continuing the program or expanding the program or both.  The commissioner shall make this report jointly with the court administrator;

(3)  the progress made since passage of this act in establishing a comprehensive system of community substance abuse treatment services which is coordinated with corrections services;

(4)  a proposal to increase the furlough days for nonlisted offenders from the existing average of 53 to a target of 75. 

(c)  On or before January 15, 2011, the commissioner of corrections shall report to the senate committee on judiciary, the house committee on corrections and institutions, and the house committee on judiciary on the successes of and problems encountered in working to meet the following goals with the funds provided and through the programs established in this act:

(1)  increase by at least 30 the number of offenders with sentences of one or more years placed in the department of corrections’ intensive substance abuse program (ISAP) pursuant to 28 V.S.A. § 808(a)(7);

(2)  move at least 10 offenders who are in the intensive phase of receiving ISAP services under 28 V.S.A. § 808(a)(7) and who are unsuccessful and would otherwise be reincarcerated to a community-based residential substance abuse treatment program which may be a component of ISAP;

(3)  incarcerate no more than 20 percent of offenders who are receiving substance abuse treatment services under 28 V.S.A. § 808(a)(7); 

(4)  reduce by 10 percent the number of reincarcerations of those on conditional reentry with a high need for substance abuse treatment;

(5)  increase by 25 the average per month number of inmates released on furlough, pursuant to 28 V.S.A. § 808; and

(6)  increase the average number of days inmates are released on reintegration furlough pursuant to 28 V.S.A. § 808(a)(8) prior to the minimum sentence to as close to 90 days as possible. 

(d)  Until the corrections oversight committee informs the commissioner that it no longer requires the information, the commissioner of corrections shall include in monthly reports to the committee:

(1)  the number of inmates eligible for furlough under 28 V.S.A. § 808 and considered appropriate for release by the commissioner but who have not been released because the commissioner is unable to find appropriate housing, employment, treatment, or other services;

(2)  which treatment or other services would have been necessary and in which geographic region the services would have been needed to enable release;

(3)  the number of days of incarceration that could have been avoided if the community resources had been available and these offenders had been released; and

(4)  a detailed description of the progress made on increasing the use of electronic monitoring as authorized by 28 V.S.A. §§ 202, 403(1) and 808(b). 

(e)  On or before January 15, 2011, the court administrator’s office, in consultation with the office of alcohol and drug abuse programs in the Vermont department of health, the department of corrections, the defender general, and the executive director of the department of state’s attorneys and sheriffs, shall report to the senate and house committees on judiciary on the costs, cost savings, and effectiveness of the screening and assessment pilot project established pursuant to Sec. 16(b)(3) of this act and shall make a recommendation as to the continuation of the screening and assessment pilot project and its expansion to other counties.

(f)  The joint fiscal office and the office of finance and management shall jointly document the impact of the policies and provisions of this act on corrections costs and shall report their findings to the general assembly on or before January 15, 2010, and in January of each year for five years thereafter.

(g)  The Vermont center for justice research shall study and evaluate the effectiveness of the system of administrative probation established by subsection 205(c) of Title 28, including whether the people who receive such probation commit further offenses and the nature of those offenses.  The center shall report its evaluation of administrative probation to the senate and house committees on judiciary on or before December 15, 2011.

Sec. 20.  EFFECTIVE DATES

(a)  Secs. 12 and 13 of this act shall take effect on July 1, 2011.

(b)  All remaining sections of this act shall take effect on July 1, 2008.

ORDERED TO LIE

S. 70

An act relating to empowering municipalities to regulate the application of pesticides within their borders.

PENDING ACTION:  Second reading of the bill.

S. 108

An act relating to the election of U.S. Representative and U.S. Senator by the instant runoff voting method.

PENDING QUESTION:  Shall the bill pass, notwithstanding the refusal of the Governor to approve the bill?

H. 331

An act relating to financing the purchase of a mobile home.

PENDING ACTION:  Second reading of the bill.

H. 332

An act relating to sale and closure of mobile home parks.

PENDING ACTION:  Second reading of the bill.


J.R.S. 24

Joint resolution relating to the federal “fast track” process for congressional review of international trade agreements.

PENDING ACTION:  Second reading of the resolution.

CONFIRMATIONS

The following appointments will be considered by the Senate, as a group, under suspension of the Rules, as moved by the President pro tempore, for confirmation together and without debate, by consent thereby given by the Senate.  However, upon request of any senator, any appointment may be singled out and acted upon separately by the Senate, with consideration given to the report of the Committee to which the appointment was referred, and with full debate; and further, all appointments for the positions of Secretaries of Agencies, Commissioners of Departments, Judges, Magistrates, and members of the Public Service Board shall be fully and separately acted upon.

Richard G. Grassi of White River Junction - Member of the Parole Board - By Sen. Campbell for the Committee on Institutions.  (4/4)

Heather Shouldice of East Calais - Member of the Capitol Complex Commission - By Sen. Coppenrath for the Committee on Institutions.  (4/4)

Susan Hayward of Middlesex - Member of the Capitol Complex Commission - By Sen. Scott for the Committee on Institutions.  (4/4)

Dean George of Middlebury - Member of the Parole Board - By Sen. Mazza for the Committee on Institutions.  (4/4)

Stephanie O’Brien of South Burlington - Member of the Liquor Control. Board - By Sen. Condos for the Committee on Economic Development, Housing and General Affairs.  (4/24)

John P. Cassarino of Rutland - Member of the Liquor Control Board - By Sen. Carris for the Committee on Economic Development, Housing and General Affairs.  (4/24)

Walter E. Freed of Dorset - Member of the Liquor Control Board - By Sen. Illuzzi for the Committee on Economic Development, Housing and General Affairs.  (4/24)

Richard W. Park of Williston - Member of the State Labor Relations Board - By Sen. Racine for the Committee on Economic Development, Housing and General Affairs.  (4/24)

James Kiehle of Brattleboro - Member of the State Labor Relations Board - By Sen. Carris for the Committee on Economic Development, Housing and General Affairs.  (4/24)

James J. Dunn, Esq. of South Burlington - Member of the State Labor Relations Board - By Sen. Condos for the Committee on Economic Development, Housing and General Affairs.  (4/24)

Leonard J. Berliner of Quechee - Member of the State Labor Relations Board.  By Sen. Illuzzi for the Committee on Economic Development, Housing and General Affairs.  (4/24)

Nathan Besio of South Burlington - Member of the Human Rights Commission - By Sen. Campbell for the Committee on Judiciary.  (4/29)

Nathan Besio of South Burlington - Member of the Human Rights Commission. - By Sen. Campbell for the Committee on Judiciary.  (4/29)

Donald R. Vickers of Georgia - Member of the Human Rights Commission - By Sen. Cummings for the Committee on Judiciary. (4/29)

Mary C. Marzec-Gerrior of Pittsford - Member of the Human Rights Commission - By Sen. Mullin for the Committee on Judiciary.  (4/29)

David Redmond of St. Johnsbury - Member of the State Infrastructure Bank Board - By Sen. Maynard for the Committee on Finance.  (4/29)

John Ewing of Burlington - Member of the Vermont Housing and Conservation Board - By Sen. Miller for the Committee on Economic Development, Housing and General Affairs.  (4/30)

Roy Folsom of Cabot - Member of the Vermont Housing and Conservation Board - By Sen. Condos for the Committee on Economic Development, Housing and General Affairs.  (4/29)

David E. Luce of Waterbury - Member of the Community High School of Vermont Board - By Sen. Doyle for the Committee on Education.  (4/29)



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us