§ 8020. Public participation in enforcement

(a) Aggrieved person. As used in this section, an "aggrieved person" means a person who alleges an injury to a particularized interest protected by a statute listed under subsection 8003(a) of this section, and the alleged injury is attributable to a violation addressed by an assurance of discontinuance, administrative order, emergency order, or civil citation issued under this chapter. An organization or association is an aggrieved person under this section when one or more of its members would be an aggrieved person in his or her own right, the interests at stake are germane to the purposes of the organization or association, and neither the claim asserted nor the relief requested by the organization or association requires participation of the individual member.

(b) Draft and final action. Prior to issuing an administrative order, assurance of discontinuance, or civil citation under this chapter and sending it to the Environmental Division, the Secretary or the Board shall post a draft copy of the administrative order, assurance of discontinuance, or civil citation for public notice and written comment for 30 days. At the conclusion of the 30-day notice and written comment period, the Secretary or the Board shall evaluate the proposed action pursuant to the written comments received. After the evaluation of the written comments, the Secretary or the Board may withdraw an administrative order, assurance of discontinuance, or civil citation. At the conclusion of the 30-day notice period, if no comments have been received, the Secretary or the Board shall file the draft as a final administrative order, assurance of discontinuance, or civil citation with the Environmental Division, and the Environmental Division may review and approve as an order of the court the administrative order, assurance of discontinuance, or civil citation as set out elsewhere in this chapter. When the Secretary or Board issues a final administrative order, assurance of discontinuance, or civil citation, it shall be sent to the Environmental Division along with any written comments received during the 30-day comment period. Concurrent with filing with the Environmental Division, the Secretary or Board shall post the final proposed action for public notice for 14 days.

(c) Filing with court. If a comment was received on the draft document, the Environmental Division shall hold the administrative order, assurance of discontinuance, or civil citation for 14 days from the date of filing to allow any person who has filed written comments under subsection (b), who is not satisfied with the final action of the Agency or the Board, and who meets the definition of "aggrieved person" under subsection (a) of this section to file a motion for permissive intervention pursuant to the procedure in Rule 24(c) of the Vermont Rules of Civil Procedure.

(d) Court action without motion to intervene. If no comment was filed on the draft document or if, at the conclusion of the 14-day period, no motion to intervene has been filed, the Environmental Division in its discretion, with or without a hearing, shall issue an order to affirm, vacate, or remand the administrative order, assurance of discontinuance, or civil citation.

(e) Condition precedent to intervention. In order for a person to intervene permissively in an administrative order, assurance of discontinuance, or civil citation, the person shall have filed written comments with the Agency or Board setting out the specific objection to the proposed action during the 30-day comment period required under subsection (b) of this section.

(f) Court action upon motion to intervene. A motion for permissive intervention shall clearly state the basis for the claim that the administrative order, assurance of discontinuance, or civil citation is insufficient to carry out the purposes of this chapter. A hearing may be held on the motion for permissive intervention in the discretion of the Environmental Division. When the Environmental Division determines that a motion to intervene fails to meet the requirements for permissive intervention, the court shall deny the motion.

(g) Emergency administrative order. When the Secretary issues an emergency administrative order, the prefiling public notice and comment provisions contained in this section shall not apply. The Environmental Division, without comment or hearing, shall act on the emergency administrative order as required by section 8009 of this title and may issue its own order. The Secretary shall publish the emergency administrative order concurrent with filing it with the Environmental Division. A person shall have 14 days from the date the emergency administrative order is filed to file a motion for permissive intervention. A motion to intervene shall not stay an emergency administrative order.

(h) Standard of review on motion to intervene. The Environmental Division shall evaluate a motion from an aggrieved person for permissive intervention in light of Rule 24(b)(1) of the Vermont Rules of Civil Procedure. When the Environmental Division permits an aggrieved person to intervene, it shall be for the sole purpose of establishing that the terms of an administrative order, emergency administrative order, assurance of discontinuance, or civil citation are insufficient to carry out the purposes of this chapter. The intervenor shall have the burden of proof by a preponderance of the evidence that the administrative order, emergency administrative order, assurance of discontinuance, or civil citation is insufficient to carry out the purposes of this chapter. A hearing may be held on the claim that the administrative order, emergency administrative order, assurance of discontinuance, or civil citation is insufficient to carry out the purposes of this chapter in the discretion of the Environmental Division. The Environmental Division upon finding that the proposed action is insufficient to carry out the purposes of this chapter shall inform the parties in writing and shall include the basis of its decision and shall vacate the proposed action.

(i) Authority of Secretary or Board to object. The Secretary or Board shall not oppose any motion filed for permissive intervention. When the Environmental Division permits a person to intervene, the Secretary, the Board, or the respondent may oppose the intervenor's claim that the proposed action is insufficient to carry out the purposes of this chapter.

(j) Response to citizen citations. The Secretary shall investigate all citizen complaints of a violation of a federally authorized or delegated program and shall respond to known complainants in writing. (Added 2011, No. 73 (Adj. Sess.), § 6; amended 2013, No. 11, §§ 21, 25.)