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VNRC Supports H.258–An Act Relating to the Public Participation in Environmental Enforcement Proceedings

VNRC Water Program Director and Staff Scientist Kim Greenwood testified in support of H.258–An Act Relating to the Public Participation in Environmental Enforcement Proceedings to the Vermont House Natural Resources and Energy Committee.

March 16, 2011

The Vermont Natural Resources Council has served as Vermont’s environmental guardian since 1963.  We have programs in Forestry, Energy, Sustainable Communities and Water.  I serve in the Water Program of our organization and have been a part of VNRC for five years.  Prior to that, I was employed by the Vermont Agency of Natural Resources where I administered the construction stormwater program including enforcement of those permits.

In 2007 VNRC undertook the first ever evaluation of the enforcement of this program.  We visited almost 70 sites and traveled all over Vermont to examine how enforcement of this particular program was working.  VNRC has a long-standing commitment to robust enforcement of our environmental regulations.  We support H.258.

For the most part, Vermonters are shut out of the enforcement process.  Once a complaint is filed with the Agency of Natural Resources, the public has no input on the process:  they are not notified if an enforcement action takes place and they have no opportunity to share the information that they have.  They do not know when, or even if, an Assurance of Discontinuance or an Administrative Order has been issued.  Currently, the only information available to Vermonters is after all closed-door discussions with the polluter have occurred and all actions have been finalized.  Then, if they look on ANR’s website, they may see one of these documents posted.  They are unable to bring new information to the process; they are unable to demonstrate what damage has been done to them or the resources that belong to all Vermonters.  They can only file the complaint.   This bill provides access to all relevant information during the enforcement negotiations.  It’s representative of good government and builds trust between our citizens and our regulators.

H.258 is narrow in scope and straightforward.  Very few enforcement actions are brought each year, and only for the most egregious violations.  For example, ANR received approximately 1000 complaints in 2010.   For that same year, ANR issued only 26 Assurance of Discontinuances and six Administrative Orders.  Previous years show similar numbers of actions.

You will hear complaints about certain provisions of the bill.  The definition of aggrieved person fails to rise to a level of concern.  Given the limited number of enforcement actions and the potential for a person to qualify under this definition, VNRC believes that this definition is a reasonable compromise that ensures that those who participate can demonstrate some level of injury yet still allows individuals to participate.  Enabling participation by those who have been harmed is a reflective of Vermont’s values.

Additionally, an “aggrieved person” can only request a hearing.  This hearing allows a judge, who has been entrusted to decide cases on behalf of Vermonters, to decide if the information presented is relevant to the case at hand.  This bill provides only the opportunity for that input, not an assurance that any information will be considered relevant.

This bill is not a citizen suit bill.  It does not allow any additional provisions for citizens to bring enforcement action.  In fact, Vermonters should be wary of a regulatory official who seeks to limit public involvement in enforcement of protection of the very resources that are held in the public trust.

The bill may cause a slight (20 day) delay in enforcement settlements.   However, the violation(s) at the heart of the case have already occurred at this point and any delay is slight when balanced with the benefits of ensuring open and rigorous environmental enforcement and meeting the requirements of federal law.  No additional harm to the environment, or to the polluter, will result from the implementation of this bill.

Lastly, and perhaps most importantly, this bill helps to meet federal EPA requirements and fulfills a long-standing deficiency in Vermont’s enforcement process.  H.258 is an important part of meeting our deficiencies with EPA and this relatively minor bill will help to ensure that we are meeting requirements to keep our delegation.  If this bill fails to pass, it remains to be seen how EPA will choose to rectify this deficiency.  Failure to pass this bill, which has widespread support from the public, environmental organizations and the Agency of Natural, provides EPA with yet another reason to revoke our delegation.