2011 Vermont Code
Title 10 Conservation and Development
Chapter 201 ADMINISTRATIVE ENVIRONMENTAL LAW ENFORCEMENT
§ 8007 Assurances of discontinuance

§ 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 until such time as the terms of the agreement between the secretary and the respondent authorize the release of the funds, provided that the secretary may, as a term of the agreement, require payment of the funds as a monetary penalty if noncompliance with subdivision (A) of this subdivision (2) continues;

(C) unless otherwise contrary to requirements of federal law and except for contributions from municipalities, 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;

(D) unless otherwise contrary to requirements of federal law, the secretary may allow a contribution from a municipality to primarily benefit the municipality. For purposes of this subsection, "municipality" shall mean a city, town, or village;

(3) for a violation that does not affect the natural environment or cause any environmental harm, contribution toward public educational projects, administered by the agency of natural resource or the natural resources board, that will enhance the public's awareness and compliance with statutes identified in subsection 8003(a) of this title and with any related rules or permits or related assurances of discontinuance or orders issued under this chapter. Contributions under this subdivision shall be used for the purpose stated in this subdivision and shall be deposited as follows:

(A) into the Act 250 permit fund established under section 6029 of this title for the portion of a settlement attributable to the resolution of a violation under authority that the natural resources board enforces under subsection 8003(a) of this title; or

(B) into the treasury for the portion of a settlement attributable to the resolution of a violation under authority that the secretary enforces under subsection 8003(a) of this title, for use by the secretary;

(4) 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 division. 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 division, 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.

(d) If the respondent complies with an assurance of discontinuance signed by the division, the respondent shall not be liable for additional civil or criminal penalties with respect to the facts set forth in the assurance of discontinuance. (Added 1989, No. 98, { 1; amended 1993, No. 164 (Adj. Sess.), { 12; No. 232 (Adj. Sess.), { 38, eff. March 15, 1995; 2003, No. 115 (Adj. Sess.), { 71, eff. Jan. 31, 2005; 2007, No. 191 (Adj. Sess.), { 3; 2009, No. 146 (Adj. Sess.), { F17; No. 154 (Adj. Sess.), { 236.)