Section 101
Authority
This rule is adopted by the Secretary of the Agency of
Natural Resources pursuant to the authority granted in
10 V.S.A. §
8019 that authorizes the Secretary to adopt
rules for the issuance of civil complaints.
Section 102 Definitions
As used in this rule:
(1) " ANR" means the Agency of Natural
Resources.
(2) "Citation" means a
civil citation pursuant to
10 V.S.A. §
8019.
(3) "Permit" means any permit, license,
certification or transitional operational authority issued under any of the
statutes specified in Section
8003 of
Title 10, including air pollution orders issued under chapter 23 of Title
10.
(4) "Person" means any
individual; partnership; company; corporation; association; joint venture;
trust; municipality; the state of Vermont or any agency, department or
subdivision of the state, any federal agency, or any other legal or commercial
entity.
(5) "Prohibited Act" means
acts which are prohibited by any statute, rule or regulation enforced by
ANR.
(6) "Recordkeeping" means the
compilation and retention of records as required by any statute, rule,
regulation, or permit enforced by ANR.
(7) "Reporting" means the duty to report
information required by any statute, rule, regulation, or permit enforced by
ANR.
(8) "Respondent" means a
person who has been issued a citation.
(9) "Secretary" means the Secretary of the
Agency of Natural Resources or a duly authorized representative.
(10) "Violation" means any noncompliance with
any category of statute, rule, regulation, or permit listed in Table 1 of this
rule.
(11) "Waiver" or "Waiver
penalty" means the penalty to be paid by the respondent if the citation is not
contested.
Section 103
Purpose
It is the purpose of these rules to establish the use of
citations as a tool to address environmental violations under the jurisdiction
of the Secretary. Further, this rule sets out the minimum, maximum and waiver
penalty amounts for each violation for which a citation may be issued.
Section 104 Applicability
These rules apply to any citation issued pursuant to
10 V.S.A. §
8019 for any category of violation listed in
Table l of this rule.
Table 1 applies only to a citation issued pursuant to
10 V.S.A. §
8019 and is not applicable to calculations
for any other penalty.
Section
105 Eligible violations and penalties
(a) A schedule of categories of violations
for which a citation may be issued and associated penalties is attached as
Table 1. Each listed violation category shall be enforceable as prescribed in
10 V.S.A. §
8019.
(b) The maximum penalty for a single
violation is established in Table 1 of this rule. In no case may a penalty for
a single violation exceed $ 3000 per respondent, excluding court fees. The
maximum penalty shall be applied when a default judgment is entered.
(c) The minimum penalty for a single
violation is established in Table 1 of this rule. In no case may a penalty for
a single violation be less than the minimum amount established by this rule,
excluding court fees.
(d) The
waiver penalty for a single violation is established in Table 1 of this
rule.
(e) More than one respondent
may be issued a citation for the same violation if multiple respondents are
responsible and/or liable for the violation.
(f) Where a respondent fails to conduct
recordkeeping or reporting, there shall be a rebuttable presumption that the
respondent failed to conduct the activity which was to be recorded and/or
reported.
Section 106
Form of citations
Citations issued under this rule shall be in the form
approved by the court administrator.
Section 107 Service of citations
Citations may be served in accordance with Rule 4 of the
Vermont Rules of Civil Procedure, or by any person authorized by the Secretary,
or by first-class mail.
Section
108 Effect of citation
(a) A
citation issued under this section shall preclude the Secretary from seeking an
additional monetary penalty for the violation specified in the citation when
any one of the following occurs:
(1) The
waiver penalty is paid.
(2)
Judgment is entered after trial or appeal.
(3) A default judgment is entered.
(b) Notwithstanding this
preclusion, the Secretary:
(1) may issue
additional citations or initiate an enforcement action under chapter 201,
including a monetary penalty, when a violation is continuing or is repeated;
and
(2) may also bring an
enforcement action to obtain injunctive relief or remediation, and if such an
action is brought the Secretary may recover the costs of bringing the
additional action and the amount of any economic benefit the respondent
obtained as a result of the underlying violation.
Section 109 Administration of the
citation program
(a) The Secretary shall be
responsible for the implementation and operation of the program established by
this rule. The implementation and operation of this rule may be delegated by
the Secretary.
(b) The Secretary
shall maintain a list of names of ANR staff authorized to issue citations and
the violations for which they are authorized to issue citations.
(c) The Secretary shall adopt guidelines for
the implementation of this rule by ANR staff At a minimum, these guidelines
shall include:
(1) The training required
before individual staff are authorized to issue citations.
(2) The mechanics of drafting and issuing a
citation.
(3) The internal review
process that shall take place prior to the issuance of any citation. This
internal review process shall include the approval of a supervisor prior to any
citation being issued.
(4) The
internal review process that shall take place prior to any citation being
amended or dismissed.
Section 110 Appeal
An appeal of a decision from a contested citation shall be to
the Superior Court Environmental Division. The appeal shall be conducted as an
on the record review.
Section
111 Severability
The provisions of any section of these rules are severable.
If any provision of these rules is found invalid by a court, or if any
application of these rules to any person or circumstance is found invalid, the
invalidity shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
Table 1 : Citation Schedule.
|
MINIMUM
|
FULL/ MAXIMUM
|
WAIVER
|
Category
|
|
$ 250
|
$ 1,000
|
$ 500
|
Statute, Permit, or Rule Violation Recordkeeping and
Reporting
|
|
$ 750
|
$ 2,000
|
$ 1,000
|
Statute, Permit, or Rule Violation - Other than
Recordkeeping and Reporting
|
|
$ 1,250
|
$ 3,000
|
$ 1,500
|
Permit not obtained or Prohibited Acts
|
