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Journal of the House

________________

TUESDAY, APRIL 1, 2008

At nine o'clock and thirty minutes in the forenoon the Speaker called the House to order.

Devotional Exercises

Devotional exercises were conducted by Reverend Terry Dorset of the Faith Community Church in Barre.

Pledge of Allegiance

Page Gabe Sheir of Montpelier led the House in the Pledge of Allegiance.

House Bill Introduced

H. 892

Rep. Gervais of Enosburg introduced a bill, entitled

An act relating to approval of amendments to the charter of the village of Enosburg Falls;

Which was read the first time and referred to the committee on Government Operations.

Committee Relieved of Consideration

and Bill Committed to Other Committee

S. 373

Rep. Dostis of Waterbury moved that the committee on Natural Resources and Energy be relieved of Senate bill, entitled

An act relating to full funding of decommissioning costs of a nuclear plant;

And that the bill be committed to the committee on Commerce, which was agreed to.

Third Reading; Bill Passed

H. 862

House bill, entitled

An act relating to approval of amendments to the charter of the village of Waterbury;

Was taken up, read the third time and passed.

Message from the Senate No. 46

     A message was received from the Senate by Mr. Marshall, its Assistant Secretary, as follows:

Madam Speaker:

I am directed to inform the House that the Senate has considered joint resolutions originating in the House of the following titles:

J.R.H. 57.  Joint resolution relating to U.S. military veterans and traumatic brain injury.

J.R.H. 58.  Joint resolution authorizing the 2008 Green Mountain Boys’ State program use of the State House.

And has adopted the same in concurrence.

Bill Read Second Time; Consideration Interrupted by Recess

H. 887

     Rep. Leriche of Hardwick spoke for the committee on Health Care

Rep. Hunt of Essex, for the committee on Appropriations, to which had been referred House bill, entitled

An act relating to health care reform;

Reported in favor of its passage when amended as follows:

First: In Sec. 4, by striking subs (b) and inserting in lieu thereof a new subsection (b) as follows: 

(b)  The sum of $50,000.00 is appropriated from the general fund to the commission on health care reform in fiscal year 2009 to conduct this study. 

Second:  In Sec. 14, subsection (e), by striking the words “up to the age of 24” and inserting in lieu thereof the words “up to the age of 23” 

Third:  In Sec. 33, by striking subsection (b) and inserting in lieu thereof a new subsection (b) as follows: 

(b)  The sum of $140,000.00 is appropriated from the general fund to the department of health to be granted to AHEC in fiscal year 2009 to support the counter-detailing project.

Fourth:  By striking Sec. 37 in its entirety and inserting in lieu thereof the following: 

Sec. 37.  HEALTH IMPROVEMENT APPROPRIATIONS

The following amounts are appropriated:

(1)  The sum of $150,000.00 is appropriated from the general fund to the department of health and shall be deposited into the Vermont educational loan repayment fund and used for the purposes of loan repayment for health care providers and health care educators pursuant to section 10a of Title 18.  Such funds, in addition to other monies appropriated elsewhere for this program, shall be allocated in fiscal year 2009 as follows:

(A)  $745,000.00 to primary care practitioners;

(B)  $200,000.00 to dentists;

(C)  $425,000.00 to nurses;

(D)  $150,000.00 to nurse educators;

(E)  $50,000.00 to disciplines based on emerging health care needs and workforce shortages.

(2) The sum of $50,000.00 is appropriated from the general fund to the department of health and shall be deposited in the loan forgiveness/incentive scholarship fund and used for the purposes of loan forgiveness programs for health care providers through the dental hygienist incentive loan program and nursing incentive loan program. Such funds, in addition to monies appropriated for this program elsewhere shall provide total funding of $150,000 in fiscal year 2009.

(3)  The amount of $200,000.00 is appropriated from the general fund to the Vermont department of health for the child psychiatry division in the Vermont Center for Children, Youth, and Families (VCCYF) to support child tele-psychiatry pilots in community health centers that will: 

(A)  Pair Vermont health centers’ medical, nursing, social work, and psychology staff with the UVM VCCYF child psychiatric consultative team;

(B)  Provide monthly training and education resources for health center staff by UVM faculty;

(C)  Help strengthen and expand the newly established UVM child psychiatry fellowship program; and

(D)  Provide critical child psychiatry assessment and consulting services across the state that will establish relationships to help recruit and retain new child psychiatrists for Vermont.

(4)  The amount of $200,000.00 is appropriated from the general fund for the Vermont State College system to be used to increase base salaries and associated benefits for difficult‑to‑fill nurse educator positions, subject to existing collective bargaining agreements.  In addition, the Vermont State Colleges system, the University of Vermont, and the Vermont Board of Nursing shall undertake a study to examine how to increase the state’s capacity to educate nursing students and shall provide a report on the study by January 15, 2009 to the house committees on health care and on human services and the senate committee on health and welfare.

Fifth:  In Sec. 38, by inserting “to be granted to the” before “College of Medicine

Sixth: By inserting two new sections to read as follows:

Sec. 46.  FUNDING COSTS TO THE STATE EMPLOYEES HEALTH CARE SYSTEM

     (a) $185,000 of general fund is reserved for transfer to the state employee’s health care system for potential costs to the system in fiscal year 2009 as result of the provisions of Sec. 14 of this Act.  The secretary of administration may transfer funds from this reserve as needed after submission of a report to the joint fiscal committee that provides the analysis of the need for the transfer.

Sec. 47.  TRANSFER OF FUNDS TO THE CATAMOUNT PROGRAM

     (a) $500,000 of general funds are transferred from the general fund to the catamount fund in fiscal year 2009 for the costs associated with 8 V.S.A. § 4080f (e) (2), as amended in Sec. 20 of this act.

     (b) $275,000 of general funds are transferred from the general fund to the catamount fund in fiscal year 2009 for the costs associated with 8 V.S.A. § 4080f (e) (1), as amended in Sec. 20 of this act.

And renumbering  the remaining sections to be numerically correct

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time. Pending the question shall the House amend the bill as recommended by the committee on Appropriations?

Recess

At ten o’clock and forty four minutes in the forenoon, the Speaker declared a recess until the fall of the gavel.

At eleven o’clock and forty minutes in the forenoon, the Speaker called the House to order.

Consideration Resumed; Bill Amended and Third Reading Ordered

H. 887

Consideration resumed on House bill, entitled

An act relating to health care reform;

     The recurring question, Shall the House amend the bill as recommended by the committee on Appropriations? was agreed to.

     Pending the question, Shall the bill be read a third time? Rep. Chen of Mendon moved to amend the bill as follows:

     By striking Sec. 33(a) in its entirety and inserting in lieu thereof the following:

Sec. 33.  Vermont Academic Detailing Program

(a)  The University of Vermont College of Medicine office of primary care shall operate the Vermont academic detailing program, a university-based educational outreach for health care professionals.  The goal of the Vermont academic detailing program is to promote high-quality, evidence-based, patient-centered, cost-effective medication treatment decisions.  This program shall present an objective overview of what evidence from studies shows about various drugs used to treat a medical condition. 

(1)  The UVM office of primary care may collaborate with other states that are working on similar programs. 

(2)  The UVM office of primary care may request information and collaboration from prescribers, pharmacists, private insurers, hospitals, pharmacy benefit managers, drug utilization review boards, state agencies, and other programs in order to best utilize resources, prevent redundancies of effort, and facilitate appropriate linkages to complementary programs, such as the Vermont Blueprint for Health. 

(3)  The Vermont Department of Health and the office of Vermont health access shall collaborate with the UVM office of primary care Vermont academic detailing program to notify prescribers about commonly used

brand-name drugs for which the patent has expired within the past 12 months or will expire in the coming 12 months and, to the extent permitted by funding, the program may include the distribution of vouchers for samples of generic medicines.

     Which was agreed to.

     Pending the question, Shall the bill be read a third time? Rep. Donahue of Northfield moved to amend the bill as follows:

First:  In Sec. 1, by adding a new subdivision (a)(3) to read:

(3)  Vermonters with a chronic mental illness are at a substantially greater risk for other illnesses and conditions than those without a chronic mental illness.  For example, data from the department of mental health show that adults receiving community rehabilitation and treatment (CRT) services for serious mental illness have a risk of mortality due to lung cancer and heart disease that is five to six times greater than that of the general population.   CRT clients are also almost eight times more likely to receive emergency room treatment for asthma.  Persons who receive outpatient Medicaid-reimbursed services at a community mental health center require as much as twice the annual expenditure for other, nonmental health care as do their Medicaid peers without mental health needs, at approximately $8,000.00 per year in nonmental health care services compared with $4,000.00 per year for those not receiving mental health services.  Identifying the mental health needs of Vermonters and integrating health care are an important response to a high risk factor for other illnesses and conditions and will pay dividends in the form of healthier citizens and reductions in costs to the health care system.

and by renumbering the remaining subdivisions accordingly

Second:  In Sec. 7, subdivision (a)(12), by inserting “mental health services,” after “acute episodic care

Third:  In Sec. 7, subsection (b), by inserting “mental health services,” after “acute episodic care,” in the first sentence

Fourth:  In Sec. 7, subdivision (c)(5), by inserting a new second sentence to read:  “The plan shall encourage integration of care management for mental health and other health conditions.

Fifth:  In Sec. 7, by inserting a new subdivision (c)(7) as follows:

(7)  Carriers shall consider chronic mental health conditions as recognized risk factors for other health conditions and shall assure the provision of care management that integrates mental health care into any healthier lifestyle or care management program.

and by renumbering the remaining subdivisions of subsection (c) and internal references accordingly

Sixth:  In Sec. 7, subdivision (g)(1), by striking “and” before “wellness” and inserting “, and the integration of mental health in care management” after “wellness

     Which was agreed to.

     Pending the question shall the bill be read a third time? Rep. Scheuermann of Stowe moved to amend the bill as follows:

     By striking Secs. 12, 13, and 14 in their entirety and by renumbering all subsequent sections to be numerically correct.

Pending the question, Shall the House amend the bill as recommended by Rep. Scheuermann of Stowe? Rep. Adams of Hartland demanded the Yeas and Nays, which demand was sustained by the Constitutional number.  The Clerk proceeded to call the roll and the question, Shall the House amend the bill as recommended by Rep. Scheuermann of Stowe? was decided in the negative,  Yeas, 50.  Nays, 91.

Those who voted in the affirmative are:


Acinapura of Brandon

Adams of Hartland

Ainsworth of Royalton

Baker of West Rutland

Branagan of Georgia

Brennan of Colchester

Browning of Arlington

Canfield of Fair Haven

Clark of Vergennes

Clerkin of Hartford

Corcoran of Bennington

Crawford of Burke

Devereux of Mount Holly

Donaghy of Poultney

Donahue of Northfield

Errecart of Shelburne

Flory of Pittsford

Grenier of St. Johnsbury

Helm of Castleton

Hube of Londonderry

Keogh of Burlington

Kilmartin of Newport City

Koch of Barre Town

Komline of Dorset

Krawczyk of Bennington

Larocque of Barnet

Larrabee of Danville

Lawrence of Lyndon

Lewis of Derby

Livingston of Manchester

Marcotte of Coventry

McAllister of Highgate

McDonald of Berlin

McNeil of Rutland Town

Morley of Barton

Morrissey of Bennington

Myers of Essex

O'Donnell of Vernon

Otterman of Topsham

Oxholm of Vergennes

Peaslee of Guildhall

Rodgers of Glover

Scheuermann of Stowe

Stevens of Shoreham

Turner of Milton

Valliere of Barre City

Westman of Cambridge

Winters of Williamstown

Wright of Burlington

Zenie of Colchester


Those who voted in the negative are:


Ancel of Calais

Anderson of Montpelier

Andrews of Rutland City

Aswad of Burlington

Atkins of Winooski

Barnard of Richmond

Bissonnette of Winooski

Botzow of Pownal

Bray of New Haven

Chen of Mendon

Cheney of Norwich

Clarkson of Woodstock

Condon of Colchester

Consejo of Sheldon

Copeland-Hanzas of Bradford

Courcelle of Rutland City

Davis of Washington

Deen of Westminster

Dostis of Waterbury

Edwards of Brattleboro

Emmons of Springfield

Evans of Essex

Fallar of Tinmouth

Fisher of Lincoln

Fitzgerald of St. Albans City

Frank of Underhill

French of Randolph

Gervais of Enosburg

Gilbert of Fairfax

Godin of Milton

Grad of Moretown

Haas of Rochester

Head of S. Burlington

Heath of Westford

Howard of Rutland City

Howrigan of Fairfield

Hutchinson of Randolph

Jerman of Essex

Jewett of Ripton

Johnson of South Hero

Keenan of St. Albans City

Kitzmiller of Montpelier

Klein of East Montpelier

Kupersmith of S. Burlington

Larson of Burlington

Lenes of Shelburne

Leriche of Hardwick

Lippert of Hinesburg

Lorber of Burlington

Maier of Middlebury

Malcolm of Pawlet

Manwaring of Wilmington

Marek of Newfane

Martin, C. of Springfield

Martin of Wolcott

Masland of Thetford

McCormack of Rutland City

McCullough of Williston

McFaun of Barre Town

Milkey of Brattleboro

Miller of Shaftsbury

Minter of Waterbury

Mitchell of Barnard

Monti of Barre City

Mook of Bennington

Moran of Wardsboro

Mrowicki of Putney

Nease of Johnson

Nuovo of Middlebury

Obuchowski of Rockingham

Ojibway of Hartford

Orr of Charlotte

Partridge of Windham

Pearson of Burlington

Pellett of Chester

Peltz of Woodbury

Perry of Richford

Peterson of Williston

Pillsbury of Brattleboro

Potter of Clarendon

Pugh of S. Burlington

Randall of Troy

Shand of Weathersfield

Sharpe of Bristol

Smith of Morristown

Spengler of Colchester

Sweaney of Windsor

Trombley of Grand Isle

Weston of Burlington

Wheeler of Derby

Zuckerman of Burlington


Those members absent with leave of the House and not voting are:


Allard of St. Albans Town

Audette of S. Burlington

Bostic of St. Johnsbury

Donovan of Burlington

Hosford of Waitsfield

Hunt of Essex

Johnson of Canaan

LaVoie of Swanton


 

     Rep. Errecart of Shelburne explained her vote as follows:

“Madam Speaker:

     Mandates make health insurance premiums in Vermont even more expensive.  I vote for the amendment, for reduced mandates and for more affordable insurance premiums.”

Pending the question, Shall the bill be read a third time? Rep. Partridge of Windham demanded the Yeas and Nays, which demand was sustained by the Constitutional number.  The Clerk proceeded to call the roll and the question, Shall the bill be read a third time? was decided in the affirmative.  Yeas, 91.  Nays, 54.

Those who voted in the affirmative are:


Acinapura of Brandon

Ancel of Calais

Anderson of Montpelier

Andrews of Rutland City

Aswad of Burlington

Atkins of Winooski

Audette of S. Burlington

Barnard of Richmond

Bissonnette of Winooski

Bostic of St. Johnsbury

Botzow of Pownal

Bray of New Haven

Browning of Arlington

Chen of Mendon

Cheney of Norwich

Clarkson of Woodstock

Condon of Colchester

Consejo of Sheldon

Copeland-Hanzas

of Bradford

Courcelle of Rutland City

Deen of Westminster

Donovan of Burlington

Dostis of Waterbury

Emmons of Springfield

Evans of Essex

Fallar of Tinmouth

Fitzgerald of St. Albans City

Frank of Underhill

French of Randolph

Gervais of Enosburg

Gilbert of Fairfax

Godin of Milton

Grad of Moretown

Head of S. Burlington

Heath of Westford

Howard of Rutland City

Howrigan of Fairfield

Hunt of Essex

Hutchinson of Randolph

Jerman of Essex

Jewett of Ripton

Johnson of South Hero

Keenan of St. Albans City

Keogh of Burlington

Kitzmiller of Montpelier

Klein of East Montpelier

Kupersmith of S. Burlington

Larson of Burlington

Lenes of Shelburne

Leriche of Hardwick

Lippert of Hinesburg

Lorber of Burlington

Maier of Middlebury

Malcolm of Pawlet

Manwaring of Wilmington

Marek of Newfane

Martin, C. of Springfield

Martin of Wolcott

Masland of Thetford

McCormack of Rutland City

McCullough of Williston

McFaun of Barre Town

Milkey of Brattleboro

Miller of Shaftsbury

Minter of Waterbury

Mitchell of Barnard

Mook of Bennington

Moran of Wardsboro

Mrowicki of Putney

Nease of Johnson

Nuovo of Middlebury

Obuchowski of Rockingham

Ojibway of Hartford

Orr of Charlotte

Partridge of Windham

Pellett of Chester

Peltz of Woodbury

Perry of Richford

Peterson of Williston

Potter of Clarendon

Pugh of S. Burlington

Rodgers of Glover

Shand of Weathersfield

Sharpe of Bristol

Smith of Morristown

Spengler of Colchester

Sweaney of Windsor

Trombley of Grand Isle

Weston of Burlington

Wheeler of Derby

Zenie of Colchester


Those who voted in the negative are:


Adams of Hartland

Ainsworth of Royalton

Allard of St. Albans Town

Baker of West Rutland

Branagan of Georgia

Brennan of Colchester

Canfield of Fair Haven

Clark of Vergennes

Clerkin of Hartford

Corcoran of Bennington

Crawford of Burke

Davis of Washington

Devereux of Mount Holly

Donaghy of Poultney

Donahue of Northfield

Edwards of Brattleboro

Errecart of Shelburne

Flory of Pittsford

Grenier of St. Johnsbury

Haas of Rochester

Helm of Castleton

Hube of Londonderry

Kilmartin of Newport City

Koch of Barre Town

Komline of Dorset

Krawczyk of Bennington

Larocque of Barnet

Larrabee of Danville

Lawrence of Lyndon

Lewis of Derby

Livingston of Manchester

Marcotte of Coventry

McAllister of Highgate

McDonald of Berlin

McNeil of Rutland Town

Monti of Barre City

Morley of Barton

Morrissey of Bennington

Myers of Essex

O'Donnell of Vernon

Otterman of Topsham

Oxholm of Vergennes

Pearson of Burlington

Peaslee of Guildhall

Pillsbury of Brattleboro

Randall of Troy

Scheuermann of Stowe

Stevens of Shoreham

Turner of Milton

Valliere of Barre City

Westman of Cambridge

Winters of Williamstown

Wright of Burlington

Zuckerman of Burlington


Those members absent with leave of the House and not voting are:


Fisher of Lincoln

Hosford of Waitsfield

Johnson of Canaan

LaVoie of Swanton


 

     Rep. Leriche of Hardwick explained her vote as follows:

“Madam Speaker:

     Health care costs are rising by $1 million dollars per day in Vermont.  I voted yes because this bill takes concrete steps to help bring down the rate of increase in health care costs, helps more people get health coverage, and contains provisions that will improve health care quality.”

     Rep. Wheeler of Derby explained his vote as follows:

“Madam Speaker:

     Although I voted for this bill, I did so with great reservations.  It is not the bill that I had hoped for.  I do not feel we can continue to pay for health care on the backs of our employees.  I can only hope that as we as a state and we as a nation can find a new way to fund health care so all Vermonters can receive all the health care they deserve.”

Recess

At two o’clock and thirty five minutes in the afternoon, the Speaker declared a recess until the fall of the gavel.

At three o’clock and five minutes in the afternoon, the Speaker called the House to order.

Bill Amended; Third Reading Ordered

H. 711

Rep. Godin of Milton, for the committee on Agriculture, to which had been referred House bill, entitled

An act relating to agricultural, forestry and horticultural education;

Reported in favor of its passage when amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  INTENT

The intent of this act is to enhance the ability of regional technical centers and secondary schools in Vermont to teach and prepare students for careers in agriculture, forestry, and horticulture and to determine what steps are necessary to prepare the next generation for involvement in these sectors of Vermont’s economy.

Sec. 2.  FINDINGS

The general assembly finds that:

(1)  Education and training are essential to meeting the goals of No. 38 of the Acts of 2007, pertaining to the viability of Vermont agriculture.

(2)  There is currently an absence of statewide oversight and coordination of agriculture, forestry, and horticulture (AF&H) education and training.

(3)  There is a teacher crisis in secondary and postsecondary AF&H education because the pool of applicants is not adequate to replace retiring faculty, some of whom have more than 40 years of experience.

(4)  Careers in the AF&H fields:

(A)  provide business opportunities while taking advantage of Vermont’s natural assets;

(B)  benefit local economies due to the multiplier effect of local investment; and

(C)  provide opportunities for young Vermonters to remain in the state.

(5)  In order for Vermont to capitalize on opportunities in the AF&H fields, comprehensive and effective postsecondary education and training are needed.

(6)  It is critical to understand the current system, methods, and curriculum of educating students in the AF&H fields before taking additional steps toward that end.

Sec. 3.  AGRICULTURAL, FORESTRY, AND HORTICULTURAL

            EDUCATION

(a)  The agency of agriculture, food and markets and the department of education shall jointly perform a needs assessment on AF&H education in secondary schools and regional technical centers and provide technical assistance for existing programs.

(b)  A report of the needs assessment required in subsection (a) of this section shall be delivered to the house and senate committees on agriculture and on education by January 15, 2009.  The report of the needs assessment shall include discussion and recommendations relating to the following:

(1)  The ability of secondary schools and regional technical centers to prepare students for AF&H careers.

(2)  The effectiveness of the organizational structures of secondary schools and regional technical centers in providing AF&H education.

(3)  The reasons why some secondary schools and regional technical centers do not provide AF&H education.

(4)  The opportunities for and barriers to AF&H career paths.

(5)  The need for a statewide specialist to provide AF&H technical and curriculum support.

(6)  An assessment of postsecondary teacher degree and certification programs or opportunities at Vermont institutions of higher learning.

(7)  The role organizations such as FFA, the Vermont youth conservation corps, FEED (food education every day), Foodworks, NOFA (northeast organic farming association), and 4-H perform in support of AF&H education.

(8)  The opportunities to enhance AF&H education through collaboration of secondary and postsecondary educational institutions.

(c)  The secretary of the agency of agriculture, food and markets and the commissioner of education shall propose funding needed to support the intent of this act in their respective budgets for FY 2010.

(d)  Resources utilized in preparing the report required in subsection (b) of this section shall include:

(1)  current and retired instructors;

(2)  regional technical center directors;

(3)  secondary schools and regional technical centers with existing AF&H education programs;

(4)  postsecondary school administrators;

(5)  the workforce training council and the department of labor;

(6)  other northeastern states where similar efforts are being made and models have been created.

(e)  The report required in subsection (b) of this section shall also include a summary of the agency of agriculture, food and markets’ and the department of education’s efforts to implement the provisions of Sec. 4 of No. 201 of the 2005 Adj. Sess. (2006).

Sec. 4.  EFFECTIVE DATE

This act shall take effect upon passage.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time, report of the committee on Agriculture agreed to and third reading ordered.

Bill Referred to Committee

H. 891

House bill, entitled

An act relating to making appropriations for the support of government;

Appearing on the Calendar for action, was taken up, and pending second reading of the bill Rep. Koch of Barre Raised a Point of Order that Section 6.022 affects the revenue of the state and pursuant to Rule 35(a) should be referred to the committee on Ways and Means, which Point of Order the Speaker ruled well taken and the bill was referred to the committee on Ways and Means.

Bill Amended; Third Reading Ordered

H. 685

Rep. Courcelle of Rutland City, for the committee on Fish, Wildlife and Water Resources, to which had been referred House bill, entitled

An act relating to enforcement of environmental laws;

Reported in favor of its passage when amended as by striking all after the enacting clause and inserting in lieu thereof the following:

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

§ 8002.  DEFINITIONS

As used in this chapter:

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

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

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

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

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

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

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

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

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

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

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

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

§ 8006.  WARNING; NOTICE OF ALLEGED VIOLATION

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

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

Sec. 3.  10 V.S.A. § 8007 is amended to read:

§ 8007.  ASSURANCES OF DISCONTINUANCE

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

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

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

(b)  An assurance of discontinuance may include:

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

(2)  contribution toward other projects related to the violation, which the respondent and the secretary or the land use panel agree will enhance the natural resources of the area affected by the violation, or their use and enjoyment.  A contribution under this subdivision shall be subject to the following:

(A)  the respondent shall disburse all required contributions to the project or shall be in full and continuing compliance with a payment schedule established by the assurance of discontinuance no later than 180 days after the effective date of the assurance discontinuance requiring the funding of such project;

(B)  in the event that a respondent fails to comply with subdivision (A) of this subdivision (2), the respondent shall place the funds into either an attorneys’ interest on lawyers’ trust account (IOLTA) or an escrow account; and

(C)  unless otherwise contrary to requirements of federal law, a contribution is not permissible where the project primarily benefits the respondent, including activities:

(i)  that are required by law, likely to be required by law, or reasonably associated with the respondent’s usual course of business; or

(ii)  which the respondent has planned, budgeted for, initiated, or completed prior to or during the current enforcement action.

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

(c)  An assurance of discontinuance shall be in writing and signed by the respondent and shall specify the statute or regulation alleged to have been violated.  The assurance of discontinuance shall be simultaneously filed with the attorney general and the environmental court.  The secretary or the land use panel shall post a final draft assurance of discontinuance to its website and shall provide a final draft assurance of discontinuance to a person upon request.  When signed by the environmental court, the assurance shall become a judicial order.  Upon motion by the attorney general made within 10 days of the date the assurance is signed by the court and upon a finding that the order

 

is insufficient to carry out the purposes of this chapter, the court shall vacate the order.

* * *

Sec. 4.  10 V.S.A. § 8008 is amended to read:

§ 8008.  ADMINISTRATIVE ORDERS

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

(b)  An order shall include:

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

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

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

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

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

(c)  An order may include:

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

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

(3)  a proposed penalty or penalty structure.

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

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

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

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

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

Sec. 5.  10 V.S.A. § 8010 is amended to read:

§ 8010.  ADMINISTRATIVE PENALTIES

(a)  An administrative penalty may be included in an administrative order issued under section 8008 of this title or in an emergency administrative order issued under subdivision 8009(a)(1) or (3) of this title.  An order assessing administrative penalties shall be accompanied by an affidavit setting forth the facts establishing the date of violation.

(b)  In determining the amount of the penalty, the secretary shall consider the following:

(1)  the degree of actual or potential impact on public health, safety, welfare and the environment resulting from the violation;

(2)  the presence of mitigating circumstances, including unreasonable delay by the secretary in seeking enforcement;

(3)  whether the respondent knew or had reason to know the violation existed;

(4)  the respondent’s record of compliance;

(5)  the economic benefit gained from the violation;

(6)  the deterrent effect of the penalty;

(7)  the state’s actual costs of enforcement; and

(8)  the length of time the violation has existed.

(c)(1)  A penalty of not more than $25,000.00 $42,500.00 may be assessed for each determination of a separate violation.  In addition, if the secretary determines that a violation is continuing the secretary may assess a penalty of not more than $10,000.00 $17,000.00 for each day the violation continues.  The maximum amount of penalty assessed under this subsection shall not exceed $100,000.00 $170,000.00.

(2)  In addition to a penalty assessed under subdivision (1) of this subsection, the secretary may assess a penalty for the economic benefit gained from a violation.

(d)  Notwithstanding the provisions of subsection 8003(b) of this title, imposition of an administrative penalty under this section precludes imposition of any other administrative or civil penalty under any other provisions of law for the same violation.

(e)  Penalties assessed under this section shall be deposited in the general fund, except for those penalties which are assessed as a result of a municipality’s enforcement action under chapter 64 of this title, in which case the municipality involved shall receive the penalty monies.

Sec. 6.  10 V.S.A. § 8011(a) is amended to read:

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

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

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

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

Sec. 7.  10 V.S.A. § 8014 is amended to read:

§ 8014.  ENFORCEMENT OF FINAL ORDERS; COLLECTION ACTIONS

(a)  The secretary may seek enforcement of a final administrative order or a landfill extension order in the superior or district court or before the environmental court.

(b)  If a penalty is assessed and the respondent fails to pay the assessed penalty within the time prescribed, the secretary may bring a collection action in any superior or district court.  In addition, when a respondent fails to pay an assessed penalty or fails to pay a contribution under subdivision 8007(b)(2) of this title within the prescribed time period, the secretary or the land use panel shall stay the effective date or the processing of any pending permit application or renewal application in which the respondent is involved until payment in full of all outstanding penalties has been received.  The secretary or the land use panel may collect interest on an assessed penalty that a respondent fails to pay within the prescribed time.  The secretary or the land use panel shall collect interest on a contribution under subdivision 8007(b)(2) of this title that a respondent fails to pay within the prescribed time.

(c)  The Notwithstanding 32 V.S.A. § 502, the secretary may contract with private collection agencies, or with attorneys engaged for similar purposes, for the collection of penalties or other monetary awards owed pursuant to assurances of discontinuance, final administrative orders, emergency administrative orders, or judgments after hearing or other judicial rulings.  The cost of collection shall be assessed against and added to the penalty assessed against a respondent.  The secretary may agree to pay private collection agencies or attorneys a fixed rate for services rendered or a percentage of the amount actually collected by the agencies or attorneys and remitted to the secretary.  Notwithstanding 32 V.S.A. § 502, the secretary may charge against collections an agreed-upon fixed rate or percentage of collections, for the purpose of making payments to private collection agencies or attorneys.

Sec. 8.  10 V.S.A. § 8015 is amended to read:

§ 8015.  STATUTE OF LIMITATIONS

Notwithstanding any other provision of law, actions brought under this chapter or chapter 211 of this title shall be commenced within the latter later of:

(1)  six years from the date the violation is or reasonably should have been discovered; or

(2)  six years from the date a continuing violation ceases.

Sec. 9.  10 V.S.A. § 8017 is amended to read:

§ 8017.  ANNUAL REPORT

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

Sec. 10.  10 V.S.A. § 8221(b)(6) is amended to read:

(b)  The court may grant temporary and permanent injunctive relief, and may:

* * *

(6)  levy a civil penalty as provided in this subdivision.  A civil penalty of not more than $50,000.00 $85,000.00 may be imposed for each violation.  In addition, in the case of a continuing violation, a penalty of not more than $25,000.00 $42,500.00 may be imposed for each day the violation continues. In fixing the amount of the penalty the court shall apply the criteria set forth in subsection 8010(b) of this title.  The cost of collection of penalties or other monetary awards shall be assessed against and added to a penalty assessed against a respondent.

Sec. 11.  10 V.S.A. § 6083(d) is amended to read:

(d)  The panels of the board and commissions shall make all practical efforts to process matters before the board and permits in a prompt manner.  The land use panel shall establish time limits for the processing of land use permits issued under section 6086 of this title as well as procedures and time periods within which to notify applicants whether an application is complete.  The land use panel shall report annually by February 15 to the house and senate committees on natural resources and energy and on government operations, and the house committee on fish, wildlife and water resources.  The annual report shall assess the performance of the board and commissions in meeting the limits; identify areas which hinder effective performance; list fees collected for each permit; summarize changes made to improve performance; and describe staffing needs for the coming year.  The annual report shall list the number of enforcement actions taken by the land use panel, the disposition of such cases, and the amount of penalties collected.

Sec. 12.  DATABASE OF ENVIRONMENTAL ENFORCEMENT ACTIONS

On or before January 15, 2009, the agency of natural resources, after consultation with the attorney general and the land use panel, shall report to the house committee on fish, wildlife and water resources and the house and senate committees on natural resources and energy with a recommendation for establishing a publicly available, searchable database of enforcement actions initiated by the agency of natural resources or the land use panel under chapter 201 of Title 10 and enforcement actions initiated by the attorney general under chapter 211 of Title 10.  The report shall include:

(1)  A recommendation on how to establish the database, including coordination among the agency of natural resources, the attorney general, and the land use panel;

(2)  A recommendation of the type of documents that should be posted to the database;

(3)  An estimate of the cost to the agency of natural resources, the attorney general, and the land use panel of establishing and maintaining the database; and

(4)  An estimate of the time necessary to develop the database so that it is available for public use.

Sec. 13.  ENVIRONMENTAL ENFORCEMENT OFFICERS

The commissioner of fish and wildlife shall deputize environmental enforcement officers employed by the agency of natural resources as deputy game wardens of the state, and environmental enforcement officers so deputized shall have the same powers and immunities as those conferred to deputy game wardens under 10 V.S.A. §§ 4193 and 4198, provided that the environmental enforcement officer shall comply with any additional requirements for certification under these sections.

Sec. 14.  AGENCY OF NATURAL RESOURCES REPORT ON

               IMPLEMENTATION OF THE GENERAL PERMIT FOR

               POTABLE WATER SUPPLIES AND WASTEWATER SYSTEMS

On or before January 15, 2009, the agency of natural resources shall submit to the house committee on fish, wildlife and water resources and the senate committee on natural resources and energy a status report regarding implementation of the potable water supply and wastewater system general permitting program authorized under No. 32 of the Acts of 2007.  The report shall include:

(1)  The number of persons seeking coverage under the general permit for potable water supplies and wastewater systems;

(2)  The number of site visits completed by agency of natural resources personnel to review applications for coverage under and compliance with the general permit for potable water supplies and wastewater systems; and

(3)  The number of and disposition of actions brought by the agency of natural resources to enforce the requirements of the general permit for potable water supplies and wastewater systems.

Sec. 15.  AGENCY OF NATURAL RESOURCES REPORT ON

               IMPLEMENTATION OF STORMWATER GENERAL PERMITS

As part of the report required under 10 V.S.A. § 1264(f)(3), the agency of natural resources shall submit to the house committee on fish, wildlife and water resources and the senate committee on natural resources and energy on or before January 15, 2009 a status report on implementation of the stormwater general permits issued under chapter 47 of Title 10.  The report shall include:

(1)  The number of persons seeking coverage under each general permit issued under chapter 47 of Title 10;

(2)  The number of site visits completed by agency of natural resources personnel to review applications for coverage under and compliance with a general permit issued under chapter 47 of Title 10; and

(3)  The number of and disposition of enforcement actions brought by the agency of natural resources to enforce the requirements of a general permit issued under chapter 47 of Title 10.

Sec. 16.  AGENCY OF NATURAL RESOURCES REPORT ON

               ENFORCEMENT BY THE DEPARTMENT OF FORESTS,

               PARKS AND RECREATION

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

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

§ 1102.

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

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

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

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

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

Rep. Morley of Barton, for the committee on Appropriations, recommended the bill ought to pass when amended as recommended by the committee on Fish, Wildlife and Water Resources.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time, the report of the committees on Fish, Wildlife and Water Resources and Appropriations agreed to and third reading ordered.

Proposal of Amendment Agreed to; Third Reading Ordered

S. 280

Rep. Morrissey of Bennington, for the committee on Human Services, to which had been referred Senate bill, entitled

An act relating to prosthetic parity;

Reported in favor of its passage in concurrence with proposal of amendment as follows:

By striking all after the enacting clause and inserting in lieu thereof the following:

§ 4088f.  PROSTHETIC PARITY

(a)  As used in this section:

(1)  “Health insurance plan” means any health insurance policy or health benefit plan offered by a health insurer, as defined in 18 V.S.A. § 9402, as well as Medicaid, the Vermont health access plan, and any other public health care assistance program offered or administered by the state or by any subdivision or instrumentality of the state.  The term shall not include policies or plans providing coverage for specific disease or other limited benefit coverage.

(2)  “Prosthetic device” means an artificial limb device to replace, in whole or in part, an arm or a leg.

(b)  A health insurance plan shall provide coverage for prosthetic devices in all health plans at least equivalent to that provided by the federal Medicare program.  Coverage may be limited to the prosthetic device that is the most appropriate model that is medically necessary to meet the patient’s medical needs.  Any dispute between the insured and the carrier concerning coverage and the application of this section shall be subject to independent external review under section 4089f of this title.

(c)  A health insurance plan may require prior authorization for prosthetic devices in the same manner and to the same extent as prior authorization is required for any other covered benefit.

(d)  A health insurance plan shall provide coverage under this section for the medically necessary repair or replacement of a prosthetic device.

(e)  A health insurance plan shall not impose any annual or lifetime dollar maximum on coverage for prosthetics that is less than the annual or lifetime dollar maximum that applies generally to all terms and services covered under the plan.

(f)  The coverage required may not be subject to a deductible, co-payment, or coinsurance provision that is less favorable to a covered individual than the deductible, co-payment, or coinsurance provisions that apply generally to other non-primary care items and services under the health plan. 

Sec. 2.  EFFECTIVE DATE

This act shall take effect on October 1, 2008 and shall apply to all health benefit plans on and after October 1, 2008 on such date as a health insurer offers, issues, or renews the health benefit plan, but in no event later than October 1, 2009.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time and the recommendation of proposal of amendment agreed to and third reading ordered.

Bill Amended; Third Reading Ordered

H. 890

     Rep. Atkins of Winooski spoke for the committee on Government Operations.

Rep. Larson of Burlington, for the committee on Appropriations, to which had been referred House bill, entitled

An act relating to compensation for certain state employees;

Reported in favor of its passage when amended as follows:

First:  by adding Secs. 13a, 13b, and 13c as follows:

Sec. 13a.  3 V.S.A. § 2222(i) is amended to read:

(i) The secretary of administration is authorized to transfer vacant positions throughout the executive branch of state government, and to adjust appropriations in the executive branch in accordance with the secretary's statewide vacancy savings plan that reflects realistic savings due to vacant positions. Such appropriation adjustments shall result in no change to the total statewide legislative appropriations to the executive branch. This authority is separate from the secretary's authority provided in section 706 of Title 32. A report of all actions taken during the preceding fiscal year pursuant to this authority shall be furnished to the legislature no later than January 15 of each year. The report shall include a list of all authorized filled and vacant positions by department and all positions subject to this subdivision and shall indicate whether each position is classified, exempt, or temporary.  In addition, the secretary shall periodically furnish the legislature with a report of accomplishments and recommendations concerning improvements in better managing resources on a statewide basis.

Sec. 13b.  SECRETARY OF ADMINISTRATION; REPORT; STATE EMPLOYEE POSITIONS

(a)  The general assembly finds that the goal in reducing state employee positions is to meet certain financial targets and not to simply reduce positions.  Because the general assembly needs detailed information to evaluate the specific actions required to meet these financial targets, the reports required by this section and 3 V.S.A. § 2222(i) are necessary for the general assembly to perform its constitutional responsibilities.

(b)  The secretary of administration shall submit the report required under 3 V.S.A. § 2222(i) to the joint fiscal committee and chairs of every legislative standing committee on July 1, 2008, September 1, 2008, and November 1, 2008.  In addition to the information required by 3 V.S.A. § 2222(i), the secretary shall also report on the number of positions eliminated since January 1, 2008 by department and indicate whether each position is classified, exempt, or temporary.  The secretary shall also recommend positions for elimination that are necessary to meet the financial targets and explain the projected fiscal year savings attributable to the position by funding source and appropriations by name and unit.

Sec. 13c.  POSITIONS ELIMINATIONS

Notwithstanding 3 V.S.A. § 327(b), no position shall be eliminated or abolished unless by act of the general assembly.

Second:  By striking Sec. 14 in its entirety and inserting in lieu thereof a new Sec. 14 as follows:

Sec. 14.  REPEAL

(a)  Sec. 12 of this act shall be repealed on July 1, 2013.

(b)  Sec. 13c of this act shall be repealed on July 1, 2009.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time, report of the committee on Appropriations agreed to and third reading ordered.

Action on Bill Postponed

H. 889

House bill, entitled

An act relating to the state’s transportation program;

Was taken up and pending the second reading of the bill, on motion of Rep. Westman of Cambridge, action on the bill was postponed until the next legislative day.

Adjournment

At four o’clock and thirty minutes in the afternoon, on motion of Rep. Adams of Hartland, the House adjourned until tomorrow at nine o’clock and thirty minutes in the forenoon.

 

 

 



Published by:

The Vermont General Assembly
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Montpelier, Vermont


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