The Vermont Statutes Online

Title 10: Conservation and Development

Chapter 47: WATER POLLUTION CONTROL

 

Sub-Chapter 1: Water Pollution Control

§ 1250. State water quality policy

It is the policy of the state of Vermont to:

(1) protect and enhance the quality, character and usefulness of its surface waters and to assure the public health;

(2) maintain the purity of drinking water;

(3) control the discharge of wastes to the waters of the state, prevent degradation of high quality waters and prevent, abate or control all activities harmful to water quality;

(4) assure the maintenance of water quality necessary to sustain existing aquatic communities;

(5) provide clear, consistent and enforceable standards for the permitting and management of discharges;

(6) protect from risk and preserve in their natural state certain high quality waters, including fragile high-altitude waters, and the ecosystems they sustain;

(7) manage the waters of the state to promote a healthy and prosperous agricultural community, to increase the opportunities for use of the state's forest, park and recreational facilities, and to allow beneficial and environmentally sound development.

It is further the policy of the state to seek over the long term to upgrade the quality of waters and to reduce existing risks to water quality. (Added 1985, No. 199 (Adj. Sess.), § 1, eff. May 17, 1986.)

§ 1251. Definitions

Whenever used or referred to in this chapter, unless a different meaning clearly appears from the context:

(1) "Board" means the secretary of natural resources.

(2) "Department" means the department of environmental conservation.

(3) "Discharge" means the placing, depositing or emission of any wastes, directly or indirectly, into an injection well or into the waters of the state.

(4) "Effluent limitation" means any restrictions or prohibitions established in accordance with the provisions of this chapter or under federal law including, but not limited to, effluent limitations, standards of performance for new sources, and toxic effluent standards, on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged to waters of the state, including schedules of compliance.

(5) "Hazardous materials" means any material determined by the secretary to have an unusually harmful effect on water quality if discharged to the waters of the state.

(6) "Mixing zone" means a length or area within the waters of the state required for the dispersion and dilution of waste discharges adequately treated to meet federal and state treatment requirements and within which it is recognized that specific water uses or water quality criteria associated with the assigned classification for such waters may not be realized. The mixing zone shall not extend more than 200 feet from the point of discharge.

(7) "Oil" means oil of any kind, including but not limited to petroleum, fuel oils, oily sludge, waste oil, gasoline, kerosene, jet fuel, tar, asphalt, crude oils, lube oil, insoluble or partially soluble derivatives of mineral, animal or vegetable oils, or any product or mixture thereof.

(8) "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.

(9) "Public interest" means that which is for the greatest benefit to the people of the state as determined by the standards set forth in subsection 1253(e) of this title.

(10) "Schedule of compliance" means a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with an effluent limitation or any other limitation, prohibition, or standard, including any water quality standard.

(11) "Secretary" means the secretary of the agency of natural resources or his authorized representative.

(12) "Waste" means effluent, sewage or any substance or material, liquid, gaseous, solid or radioactive, including heated liquids, whether or not harmful or deleterious to waters; provided however, the term "sewage" as used in this chapter shall not include the rinse or process water from a cheese manufacturing process.

(13) "Waters" includes all rivers, streams, creeks, brooks, reservoirs, ponds, lakes, springs and all bodies of surface waters, artificial or natural, which are contained within, flow through or border upon the state or any portion of it.

(14) "Injection well" means any opening in the ground used as a means of discharging waste except for a dry hole not exceeding seven feet in depth which is constructed as, and used solely for the disposal of domestic wastes.

(15) "Indirect discharge" means any discharge to groundwater, whether subsurface, land-based or otherwise.

(16) "Waste management zone" means a specific reach of Class B waters designated by a permit to accept the discharge of properly treated wastes that prior to treatment contained organisms pathogenic to human beings. Throughout the receiving waters, water quality criteria must be achieved but increased health risks exist due to the authorized discharge.

(17) "Basin plan" means a plan prepared by the secretary for each of Vermont's 17 basins in conjunction with the basin planning process required by § 303(e) of the federal Clean Water Act and 40 C.F.R. part 131. (Amended 1961, No. 100, § 2; 1964, No. 37 (Sp. Sess.), § 2; 1969, No. 252 (Adj. Sess.), § 1, eff. April 4, 1970; 1973, No. 103, § 2, eff. April 24, 1973; 1973, No. 112, § 3, eff. April 25, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 2, eff. May 17, 1986; 1987, No. 76, § 18; 1991, No. 157 (Adj. Sess.), § 4, eff. May 5, 1992; 1991, No. 211 (Adj. Sess.), § 1; 2003, No. 115 (Adj. Sess.), § 24, eff. Jan. 31, 2005.)

§ 1251a. Water pollution administration

(a) The Secretary may adopt rules, in accordance with the procedures in the Administrative Procedure Act, which are necessary for the proper administration of the Secretary's duties under this subchapter, including a planning process approvable under Public Law 92-500, as amended.

(b) The Secretary shall establish by rule requirements for the issuance of permits under subsection 1259(e) of this title, including in-stream water quality parameters necessary to establish permit conditions and performance monitoring; however, these in-stream water quality parameters shall not supersede water quality standards adopted by the Secretary.

(c) On or before January 15, 2008, the Secretary of Natural Resources shall propose draft rules for an implementation process for the antidegradation policy in the water quality standards of the State. The implementation process for the antidegradation policy shall be consistent with the State water quality policy established in section 1250 of this title, the Vermont Water Quality Standards, and any applicable requirements of the federal Clean Water Act. On or before July 1, 2008, a final proposal of the rules for an implementation process for the antidegradation policy shall be filed with the Secretary of State under 3 V.S.A. § 841. (Added 1981, No. 222 (Adj. Sess.), § 25; amended 1985, No. 199 (Adj. Sess.), § 4, eff. May 17, 1986; 1989, No. 64, § 2, eff. May 24, 1989; 1997, No. 155 (Adj. Sess.), § 34; 2003, No. 115 (Adj. Sess.), § 25, eff. Jan. 31, 2005; 2007, No. 43, § 6a, eff. May 23, 2007; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.)

§ 1252. Classification of waters; mixing zones

(a) The State adopts, for the purposes of classifying its waters, the following classes and definitions thereof:

Class A. (1) Suitable for public water supply with disinfection when necessary; character uniformly excellent; or

(2) High quality waters which have significant ecological value.

Class B. Suitable for bathing and recreation, irrigation and agricultural uses; good fish habitat; good aesthetic value; acceptable for public water supply with filtration and disinfection.

(b) The Secretary may establish mixing zones or waste management zones as necessary in the issuance of a permit in accordance with this section and criteria established by rule. Those waters authorized under this chapter, as of July 1, 1992, to receive the direct discharge of wastes which prior to treatment contained organisms pathogenic to human beings are designated waste management zones for those discharges. Those waters that as of July 1, 1992 are Class C waters into which no direct discharge of wastes that prior to treatment contained organisms pathogenic to human beings is authorized, shall become waste management zones for any municipality in which the waters are located that qualifies for a discharge permit under this chapter for those wastes prior to July 1, 1997.

(c) Upon issuance or renewal of any discharge permit, subsequent to July 1, 1992, involving a discharge into a waste management zone created pursuant to subsection (b) of this section, the Secretary shall adjust the size of the waste management zone to the extent necessary to accommodate the authorized discharge.

(d) Prior to the initial authorization of a new waste management zone, except those created pursuant to subsection (b) of this section, or prior to the expansion of the size of an existing zone created under this section, in order to accommodate an increased discharge, the Secretary shall:

(1) Prepare a draft permit which includes a description of the proposed waste management zone prior to publishing the notice required by subdivision (2) of this subsection.

(2) Publish notice in both a local newspaper generally circulating in the area where the affected waters are located and a separate newspaper generally circulating throughout the State not less than 21 days prior to the public hearing required by this subsection. The notice shall describe the draft permit and proposed waste management zone and provide for the opportunity to file written comment for not less than seven days following the hearing.

(3) Forward copies of the notice, the draft permit and the description of the proposed waste management zone to any municipality and regional planning commission within the area where the affected waters are located not less than 21 days prior to the hearing. The notice, the draft permit and the description of the waste management zone shall also be provided to any person upon request.

(4) Hold a public hearing convenient to the waters affected.

(5) Give due consideration to the cumulative impact of overlapping waste management zones.

(6) Determine that the creation or expansion of such a waste management zone is in the public interest after giving due consideration to the factors specified in subdivisions 1253(e)(1) through (10) of this title.

(7) Determine that the creation or expansion of such a zone will not:

(A) Create a public health hazard; or

(B) Constitute a barrier to the passage or migration of fish or result in an undue adverse effect on fish, aquatic biota, or wildlife; or

(C) Interfere with those uses which have actually occurred on or after November 28, 1975, in or on a water body, whether or not the uses are included in the standard for classification of the particular water body; or

(D) Be inconsistent with the anti-degradation policy in the water quality standards.

(8) Provide a written explanation with respect to subdivisions (5) through (7) of this subsection.

(e) The Secretary shall adopt standards of water quality to achieve the purposes of the water classifications. Such standards shall be expressed in detailed water quality criteria, taking into account the available data and the effect of these criteria on existing activities, using as appropriate: (1) numerical values, (2) biological parameters; and (3) narrative descriptions. These standards shall establish limits for at least the following: alkalinity, ammonia, chlorine, fecal coliform, color, nitrates, oil and grease, dissolved oxygen, pH, phosphorus, temperature, all toxic substances for which the United States Environmental Protection Agency has established criteria values and any other water quality parameters deemed necessary by the Board.

(f) The Secretary may issue declaratory rulings regarding these standards.

(g) Notwithstanding the provisions of subsection 1259(c) of this title and rules implementing that subsection, the Secretary may issue a discharge permit pursuant to section 1263 of this title, for a municipal discharge of treated municipal waste into Class B waters, if that municipal discharge was established prior to January 1, 1974 and was, as of January 1, 1990, occurring pursuant to authorization contained in an assurance of discontinuance.

(h) A discharge permit issued pursuant to subsection (g) of this section may not authorize an increase in mass pollutant loading beyond that contained in the assurance of discontinuance. (Amended 1961, No. 101; 1964, No. 37 (Sp. Sess.), § 3; 1967, No. 181, § 1, eff. April 17, 1967; 1973, No. 103, § 3, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 5, eff. May 17, 1986; 1989, No. 278 (Adj. Sess.), § 5; 1991, No. 211 (Adj. Sess.), § 2; 2011, No. 138 (Adj. Sess.), § 21, eff. May 14, 2012.)

§ 1253. Classification of waters designated, reclassification

(a) The waters of all lakes, ponds and reservoirs, natural or artificial, used exclusively for public water supply prior to July 1, 1971, and all waters flowing into such lakes, ponds, and reservoirs, and all waters located above 2,500 feet altitude, National Geodetic Vertical Datum, are designated Class A waters and shall be maintained as such unless reclassified.

(b) The remaining waters except as otherwise classified by the Board prior to July 1, 1971, are designated Class B waters and shall be maintained as such unless reclassified. All waters designated as Class C waters prior to July 1, 1992, are designated Class B waters and shall be maintained as such unless reclassified.

(c) On its own motion, or on receipt of a written request that the Secretary adopt, amend, or repeal a reclassification rule, the Secretary shall comply with 3 V.S.A. § 806 and may initiate a rulemaking proceeding to reclassify all or any portion of the affected waters in the public interest. In the course of this proceeding, the Secretary shall comply with the provisions of 3 V.S.A. chapter 25, and may hold a public hearing convenient to the waters in question. If the Secretary finds that the established classification is contrary to the public interest and that reclassification is in the public interest, he or she shall file a final proposal of reclassification in accordance with 3 V.S.A. § 841. If the Secretary finds that it is in the public interest to change the classification of any pond, lake or reservoir designated as Class A waters by subsection (a) of this section, the Secretary shall so advise and consult with the Department of Health and shall provide in its reclassification rule a reasonable period of time before the rule becomes effective. During that time, any municipalities or persons whose water supply is affected shall construct filtration and disinfection facilities or convert to a new source of water supply.

(d) The Secretary shall determine what degree of water quality and classification should be obtained and maintained for those waters not classified by the Board before 1981 following the procedures in sections 1254 and 1258 of this title. Those waters shall be classified in the public interest. The Secretary shall revise all 17 basin plans by January 1, 2006, and update them every five years thereafter. On or before January 1 of each year, the Secretary shall report to the House Committees on Agriculture and Forest Product, on Natural Resources and Energy, and on Fish, Wildlife and Water Resources, and to the Senate Committees on Agriculture and on Natural Resources and Energy regarding the progress made and difficulties encountered in revising basin plans. By January 1, 1993, the Secretary shall prepare an overall management plan to ensure that the water quality standards are met in all State waters.

(e) In determining the question of public interest, the Secretary shall give due consideration to, and explain his or her decision with respect to, the following:

(1) existing and obtainable water qualities;

(2) existing and potential use of waters for public water supply, recreational, agricultural, industrial and other legitimate purposes;

(3) natural sources of pollution;

(4) public and private pollution sources and the alternative means of abating the same;

(5) consistency with the State water quality policy established in 10 V.S.A. § 1250;

(6) suitability of waters as habitat for fish, aquatic life and wildlife;

(7) need for and use of minimum streamflow requirements;

(8) federal requirements for classification and management of waters;

(9) consistency with applicable municipal, regional and state plans; and

(10) any other factors relevant to determine the maximum beneficial use and enjoyment of waters.

(f) Notwithstanding the provisions of subsection (c) of this section, when reclassifying waters to Class A, the Secretary need find only that the reclassification is in the public interest.

(g) The Secretary under the reclassification rule may grant permits for only a portion of the assimilative capacity of the receiving waters, or may permit only indirect discharges from on-site disposal systems, or both. (Amended 1961, No. 100, § 2; 1964, No. 37 (Sp. Sess.), § 4; 1969, No. 252 (Adj. Sess.), § 2, eff. July 1, 1971; 1973, No. 3, eff. Feb. 8, 1973; 1973, No. 103, § 16, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 6, eff. May 17, 1986; 1987, No. 154 (Adj. Sess.), §§ 1, 2, eff. April 20, 1988; 1991, No. 211 (Adj. Sess.), § 3; 1999, No. 114 (Adj. Sess.), § 2, eff. May 19, 2000; 2003, No. 115 (Adj. Sess.), § 26, eff. Jan. 31, 2005; 2009, No. 33, § 25; 2011, No. 138 (Adj. Sess.), § 22, eff. May 14, 2012.)

§ 1254. Classification of waters by Secretary; aid

In classifying or reclassifying the waters of the state, the Secretary is authorized to call upon any State department or agency for any pertinent information, other than information of a confidential nature, which the department or agency has or could obtain easily in the course of its work. (Amended 1961, No. 100, § 2; 1969, No. 252 (Adj. Sess.), § 3, eff. April 4, 1970; 1981, No. 222 (Adj. Sess.), § 25; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.)

§§ 1255-1257. [Omitted.].

§ 1258. Management of waters after classification, enforcement

(a) After the classification of any waters has been determined by the Secretary, those waters shall be managed under the supervision of the Secretary in order to obtain and maintain the classification established. The Secretary may enforce a classification against any person affected thereby who, with notice of the classification, has failed to comply. An action to enforce a classification shall be brought in the Superior Court of the county wherein the affected waters are located.

(b) The Secretary shall manage discharges to the waters of the State by administering a permit program consistent with the National Pollutant Discharge Elimination System established by section 402 of Public Law 92-500 and with the guidelines promulgated in accordance with section 304(h)(2) of Public Law 92-500. The Secretary shall use the full range of possibilities and variables allowable under these sections of Public Law 92-500, including general permits, as are consistent with meeting the objectives of the Vermont Water Pollution Control Program. The Secretary shall adopt a continuing planning process approvable under section 303(e) of Public Law 92-500. Neither the Secretary nor his or her duly authorized representative may receive or during the previous two years have received a significant portion of his or her income directly or indirectly from permit holders or applicants for a permit under this chapter. (Amended 1969, No. 252 (Adj. Sess.), § 6, eff. April 4, 1970; 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972; 1973, No. 103, § 4, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1987, No. 282 (Adj. Sess.), § 12; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.)

§ 1259. Prohibitions

(a) No person shall discharge any waste, substance, or material into waters of the State, nor shall any person discharge any waste, substance, or material into an injection well or discharge into a publicly owned treatment works any waste which interferes with, passes through without treatment, or is otherwise incompatible with those works or would have a substantial adverse effect on those works or on water quality, without first obtaining a permit for that discharge from the Secretary. This subsection shall not prohibit the proper application of fertilizer to fields and crops, nor reduce or affect the authority or policy declared in Joint House Resolution 7 of the 1971 Session of the General Assembly.

(b) Any records, reports or information obtained under this permit program shall be available to the public for inspection and copying. However, upon a showing satisfactory to the Secretary that any records, reports or information or part thereof, other than effluent data, would, if made public, divulge methods or processes entitled to protection as trade secrets, the Secretary shall treat and protect those records, reports or information as confidential. Any records, reports or information accorded confidential treatment will be disclosed to authorized representatives of the State and the United States when relevant to any proceedings under this chapter.

(c) No person shall cause a direct discharge into Class A waters of any wastes that, prior to treatment, contained organisms pathogenic to human beings. Except within a waste management zone, no person shall cause a direct discharge into Class B waters of any wastes that prior to treatment contained organisms pathogenic to human beings.

(d) No person shall cause a discharge of wastes into Class A waters, except for on-site disposal of sewage from systems with a capacity of 1,000 gallons per day (gpd), or less, that are either exempt from or comply with the environmental protection rules, or existing systems, which shall require a permit according to the provisions of subsection 1263(f) of this title.

(e) Except for on-site disposal of sewage from systems of less than 6,500 gpd capacity that are either exempt from or comply with the environmental protection rules, no person shall cause any new or increased indirect discharge of wastes into Class B waters without a permit under section 1263. The Secretary shall not issue a permit for on-site disposal of sewage that discharges into Class B waters, unless the applicant demonstrates by clear and convincing evidence, and the Secretary finds, that the discharge:

(1) will not significantly alter the aquatic biota in the receiving waters;

(2) will not pose more than a negligible risk to public health;

(3) will be consistent with existing and potential beneficial uses of the waters; and

(4) will not cause a violation of water quality standards.

(f) The provisions of subsections (c), (d), and (e) of this section shall not regulate accepted agricultural or silvicultural practices, as such are defined by the Secretary of Agriculture, Food and Markets and the Commissioner of Forests, Parks and Recreation, respectively, after an opportunity for a public hearing; nor shall these provisions regulate discharges from concentrated animal feeding operations that require a permit under section 1263 of this title; nor shall those provisions prohibit stormwater runoff or the discharge of nonpolluting wastes, as defined by the Secretary.

(g) Nothing in this chapter shall prohibit the Secretary from approving nondischarging sewage treatment systems that the Secretary finds are safe, reliable, and effective.

(h) The Secretary shall adopt rules to assure that the installation of two or more systems discharging sewage will not result in the circumvention of the purposes of this chapter or the requirements of this section.

(i) The Secretary of Natural Resources, to the extent compatible with federal requirements, shall delegate to the Secretary of Agriculture, Food and Markets the state agricultural non-point source pollution control program planning, implementation and regulation. A memorandum of understanding shall be adopted for this purpose, which shall address implementation grants, the distribution of federal program assistance and the development of land use performance standards. Prior to executing the memorandum, the Secretary of State shall arrange for two formal publications of information relating to the proposed memorandum. The information shall consist of a summary of the proposal; the name, telephone number, and address of a person able to answer questions and receive comments on the proposal; and the deadline for receiving comments. Publication shall be subject to the provisions of 3 V.S.A. § 839(d), (e), and (g), relating to the publication of administrative rules. The proposed memorandum of understanding shall be available for 30 days after the final date of publication for public review and comment prior to being executed by the Secretary of Natural Resources and the Secretary of Agriculture, Food and Markets. The Secretary of Natural Resources and the Secretary of Agriculture, Food and Markets annually shall review the memorandum of understanding to assure compliance with the requirements of the Clean Water Act and the provisions of section 1258 of this title. If the memorandum is substantially revised, it first shall be noticed in the same manner that applies to the initial memorandum. Actions by the Secretary of Agriculture, Food and Markets under this section shall be consistent with the water quality standards and water pollution control requirements of chapter 47 of this title and the federal Clean Water Act as amended.

(j) No person shall discharge waste from hydraulic fracturing, as that term is defined in 29 V.S.A. § 503, into or from a pollution abatement facility, as that term is defined in section 1571 of this title. (Amended 1967, No. 181, § 2, eff. April 17, 1967; 1969, No. 252 (Adj. Sess.), § 7, eff. April 4, 1970; 1971, No. 255 (Adj. Sess.), § 3, eff. April 11, 1972; 1973, No. 103, § 5, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 3, eff. May 17, 1986; 1991, No. 211 (Adj. Sess.), § 4; 1991, No. 261 (Adj. Sess.), § 3; 2003, No. 42, § 2, eff. May 27, 2003; 2005, No. 78, § 12, eff. June 24, 2005; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012; 2011, No. 152 (Adj. Sess.), § 4, eff. May 16, 2012.)

§ 1260. Repealed. 1969, No. 252 (Adj. Sess.), § 18, eff. April 4, 1970.

§ 1261. [Omitted.].

§ 1262. Repealed. 1969, No. 252 (Adj. Sess.), § 18, eff. April 4, 1970.

§ 1263. Discharge permits

(a) Any person who intends to discharge waste into the waters of the state or who intends to discharge into an injection well or who intends to discharge into any publicly owned treatment works any waste which interferes with, passes through without treatment, or is otherwise incompatible with that works or would have a substantial adverse effect on that works or on water quality shall make application to the secretary for a discharge permit. Application shall be made on a form prescribed by the secretary. An applicant shall pay an application fee in accordance with 3 V.S.A. § 2822.

(b) Except for applications for permission to discharge under the terms of a previously issued general permit, the secretary shall provide for notice of each application to the public and any appropriate officials of another state and the federal government including the administrator of the United States Environmental Protection Agency, and shall provide an opportunity for written comments or a public hearing or both on the application before making a final ruling on the application. Prior to issuing a general permit, the secretary shall give notice as provided in this subsection and provide for written comments or a public hearing or both as provided in this subsection. For applications for permission to discharge under the terms of a previously issued general permit, the applicant shall provide notice, on a form provided by the secretary, to the municipal clerk of the municipality in which the discharge is located at the time the application is filed with the secretary, and the secretary shall provide an opportunity for written comment, regarding whether the application complies with the terms and conditions of the general permit, for ten days following receipt of the application. The secretary may require any applicant to submit any additional information, which the secretary considers necessary and may refuse to grant a permit, or permission to discharge under the terms of a general permit, until the information is furnished and evaluated.

(c) If the secretary determines that the proposed discharge will not reduce the quality of the receiving waters below the classification established for them and will not violate any applicable provisions of state or federal laws or regulations, he shall issue a permit containing terms and conditions as may be necessary to carry out the purposes of this chapter and of applicable federal law. Those terms and conditions may include, but shall not be limited to, providing for specific effluent limitations and levels of treatment technology; monitoring, recording, reporting standards; entry and inspection authority for state and federal officials; reporting of new pollutants and substantial changes in volume or character of discharges to waste treatment systems or waters of the state; pretreatment standards before discharge to waste treatment facilities or waters of the state; and toxic effluent standards or prohibitions.

(d) A discharge permit shall:

(1) specify the manner, nature, volume, and frequency of the discharge permitted and contain terms and conditions consistent with subsection (c) of this section;

(2) require proper operation and maintenance of any pollution abatement facility necessary in the treatment or processing of the waste by qualified personnel in accordance with standards established by the secretary. The secretary may require operators to be certified under a program established by the secretary. The secretary may require a laboratory quality assurance sample program to insure qualifications of laboratory analysts;

(3) contain an operation, management, and emergency response plan when required under section 1278 of this title and additional conditions, requirements, and restrictions as the secretary deems necessary to preserve and protect the quality of the receiving waters, including but not limited to requirements concerning recording, reporting, monitoring, and inspection of the operation and maintenance of waste treatment facilities and waste collection systems; and

(4) be valid for the period of time specified therein, not to exceed five years.

(e) A discharge permit may be renewed from time to time upon application to the secretary. A renewal permit filing requirement for reissuance shall be determined by the secretary and may range from a simple written request for reissuance to the submission of all information required by the initial application. A renewal permit shall be issued following all determinations and procedures required for initial permit application.

(f) Existing indirect discharges to the waters of the state from on-site disposal of sewage shall comply with and be subject to the provisions of this chapter, and shall obtain the required permit, no later than July 1, 1991. Notwithstanding the requirements of subsections 1259(d) and (e) of this title, the secretary shall grant a permit for an existing indirect discharge to the waters of the state for on-site disposal of sewage unless he or she finds that the discharge violates the water quality standards. Existing indirect discharges from on-site sewage disposal systems of less than 6,500 gpd capacity shall not require a permit.

(g) Notwithstanding any other provision of law, any person who owns or operates a concentrated animal feeding operation that requires a permit under the federal National Pollutant Discharge Elimination System permit regulations shall submit an application to the secretary for a discharge permit and pay the required fees specified in 3 V.S.A. § 2822. On or before July 1, 2007, the secretary of natural resources shall adopt rules implementing the federal National Pollutant Discharge Elimination System permit regulations for discharges from concentrated animal feeding operations. Until such regulations are adopted, the substantive permitting standards and criteria used by the secretary to evaluate applications and issue or deny discharge permits for concentrated animal feeding operations shall be those specified by federal regulations. The secretary may issue an individual or general permit for these types of discharges in accordance with the procedural requirements of subsection (b) of this section and other state law. For the purposes of this subsection, "concentrated animal feeding operation" means a farm that meets the definition contained in the federal regulations. (Added 1969, No. 252 (Adj. Sess.), § 11, eff. April 4, 1970; amended 1973, No. 103, § 6, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 7, eff. May 17, 1986; 1987, No. 76, § 4; 1987, No. 173 (Adj. Sess.), eff. May 6, 1988; 1987, No. 282 (Adj. Sess.), § 13; 1989, No. 116, § 2; 1993, No. 48, §§ 5, 6, eff. June 1, 1993; 2003, No. 115 (Adj. Sess.), § 27, eff. Jan. 31, 2005; 2005, No. 78, § 13, eff. June 24, 2005; 2005, No. 154 (Adj. Sess.), § 5b, eff. July 1, 2007.)

§ 1263a. Repealed. 2009, No. 46, § 4.

§ 1264. Stormwater management

(a) The General Assembly finds that the management of stormwater runoff is necessary to reduce stream channel instability, pollution, siltation, sedimentation, and local flooding, all of which have adverse impacts on the water and land resources of the State. The General Assembly intends, by enactment of this section, to reduce the adverse effects of stormwater runoff. The General Assembly determines that this intent may best be attained by a process that: assures broad participation; focuses upon the prevention of pollution; relies on structural treatment only when necessary; establishes and maintains accountability; tailors strategies to the region and the locale; assures an adequate funding source; builds broadbased programs; provides for the evaluation and appropriate evolution of programs; is consistent with the federal Clean Water Act and the State water quality standards; and accords appropriate recognition to the importance of community benefits that accompany an effective stormwater runoff management program. In furtherance of these purposes, the Secretary shall implement two stormwater permitting programs. The first program is based on the requirements of the federal National Pollutant Discharge Elimination System (NPDES) permit program in accordance with section 1258 of this title. The second program is a state permit program based on the requirements of this section for the discharge of "regulated stormwater runoff" as that term is defined in subdivision (11) of this subsection. As used in this section:

(1) "2002 Stormwater Management Manual" means the Agency of Natural Resources' Stormwater Management Manual dated April 2002, as amended from time to time by rule.

(2) "Best management practice" (BMP) means a schedule of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce water pollution.

(3) "Development" means the construction of impervious surface on a tract or tracts of land where no impervious surface previously existed.

(4) "Existing stormwater discharge" means a discharge of regulated stormwater runoff which first occurred prior to June 1, 2002 and that is subject to the permitting requirements of this chapter.

(5) "Expansion" and "the expanded portion of an existing discharge" mean an increase or addition of impervious surface, such that the total resulting impervious area is greater than the minimum regulatory threshold. Expansion does not mean an increase or addition of impervious surface of less than 5,000 square feet.

(6) "Impervious surface" means those manmade surfaces, including paved and unpaved roads, parking areas, roofs, driveways, and walkways, from which precipitation runs off rather than infiltrates.

(7) "New stormwater discharge" means a new or expanded discharge of regulated stormwater runoff, subject to the permitting requirements of this chapter, which first occurs after June 1, 2002 and has not been previously authorized pursuant to this chapter.

(8) "Offset" means a state-permitted or approved action or project within a stormwater-impaired water that a discharger or a third person may complete to mitigate the impacts that a discharge of regulated stormwater runoff has on the stormwater-impaired water.

(9) "Offset charge" means the amount of sediment load or hydrologic impact that an offset must reduce or control in the stormwater-impaired water in which the offset is located.

(10) "Redevelopment" means the construction or reconstruction of an impervious surface where an impervious surface already exists when such new construction involves substantial site grading, substantial subsurface excavation, or substantial modification of existing stormwater conveyance, such that the total of impervious surface to be constructed or reconstructed is greater than the minimum regulatory threshold. Redevelopment does not mean the construction or reconstruction of impervious surface where impervious surface already exists when the construction or reconstruction involves less than 5,000 square feet. Redevelopment does not mean public road management activities, including any crack sealing, patching, coldplaning, resurfacing, reclaiming, or grading treatments used to maintain pavement, bridges, and unpaved roads.

(11) "Regulated stormwater runoff" means precipitation, snowmelt, and the material dissolved or suspended in precipitation and snowmelt that runs off impervious surfaces and discharges into surface waters or into groundwater via infiltration.

(12) "Stormwater impact fee" means the monetary charge assessed to a permit applicant for the discharge of regulated stormwater runoff to a stormwater-impaired water that mitigates a sediment load level or hydrologic impact that the discharger is unable to control through on-site treatment or completion of an offset on a site owned or controlled by the permit applicant.

(13) "Stormwater-impaired water" means a State water that the Secretary determines is significantly impaired by discharges of regulated stormwater runoff.

(14) "Stormwater runoff" means precipitation and snowmelt that does not infiltrate into the soil, including material dissolved or suspended in it, but does not include discharges from undisturbed natural terrain or wastes from combined sewer overflows.

(15) "Total maximum daily load" (TMDL) means the calculations and plan for meeting water quality standards approved by the U.S. Environmental Protection Agency (EPA) and prepared pursuant to 33 U.S.C. § 1313(d) and federal regulations adopted under that law.

(16) "Water quality remediation plan" means a plan, other than a TMDL or sediment load allocation, designed to bring an impaired water body into compliance with applicable water quality standards in accordance with 40 C.F.R. § 130.7(b)(1)(ii) and (iii).

(17) "Watershed improvement permit" means a general permit specific to a stormwater-impaired water that is designed to apply management strategies to existing and new discharges and that includes a schedule of compliance no longer than five years reasonably designed to assure attainment of the Vermont water quality standards in the receiving waters.

(18) "Stormwater system" means the storm sewers; outfall sewers; surface drains; manmade wetlands; channels; ditches; wet and dry bottom basins; rain gardens; and other control equipment necessary and appurtenant to the collection, transportation, conveyance, pumping, treatment, disposal, and discharge of regulated stormwater runoff.

(19) "Net zero standard" means:

(A) A new discharge or the expanded portion of an existing discharge meets the requirements of the 2002 Stormwater Management Manual and does not increase the sediment load in the receiving stormwater-impaired water; or

(B) A discharge from redevelopment; from an existing discharge operating under an expired stormwater discharge permit where the property owner applies for a new permit; or from any combination of development, redevelopment, and expansion meets on-site the water quality, recharge, and channel protection criteria set forth in Table 1.1 of the 2002 Stormwater Management Manual that are determined to be technically feasible by an engineering feasibility analysis conducted by the Agency and if the sediment load from the discharge approximates the natural runoff from an undeveloped field or open meadow that is not used for agricultural activity.

(b) The Secretary shall prepare a plan for the management of collected stormwater runoff found by the Secretary to be deleterious to receiving waters. The plan shall recognize that the runoff of stormwater is different from the discharge of sanitary and industrial wastes because of the influence of natural events of stormwater runoff, the variations in characteristics of those runoffs, and the increased stream flows and natural degradation of the receiving water quality at the time of discharge. The plan shall be cost effective and designed to minimize any adverse impact of stormwater runoff to waters of the State. By no later than February 1, 2001, the Secretary shall prepare an enhanced stormwater management program and report on the content of that program to the House Committees on Fish, Wildlife and Water Resources and on Natural Resources and Energy and to the Senate Committee on NaturalResources and Energy. In developing the program, the Secretary shall consult with the Board, affected municipalities, regional entities, other State and federal agencies, and members of the public. The Secretary shall be responsible for implementation of the program. The Secretary's stormwater management program shall include, at a minimum, provisions that:

(1) Indicate that the primary goals of the state program will be to assure compliance with the Vermont Water Quality Standards and to maintain after development, as nearly as possible, the predevelopment runoff characteristics.

(2) Allow for differences in hydrologic characteristics in different parts of the state.

(3) Incorporate stormwater management into the basin planning process conducted under section 1253 of this title.

(4) Assure consistency with applicable requirements of the federal Clean Water Act.

(5) Address stormwater management in new development and redevelopment.

(6) Control stormwater runoff from construction sites and other land disturbing activities.

(7) Indicate that water quality mitigation practices may be required for any redevelopment of previously developed sites, even when preredevelopment runoff characteristics are proposed to be maintained.

(8) Specify minimum requirements for inspection and maintenance of stormwater management practices.

(9) Promote detection and elimination of improper or illegal connections and discharges.

(10) Promote implementation of pollution prevention during the conduct of municipal operations.

(11) Provide for a design manual that includes technical guidance for the management of stormwater runoff.

(12) Encourage municipal governments to utilize existing regulatory and planning authority to implement improved stormwater management by providing technical assistance, training, research and coordination with respect to stormwater management technology, and by preparing and distributing a model local stormwater management ordinance.

(13) Promote public education and participation among citizens and municipalities about cost-effective and innovative measures to reduce stormwater discharges to the waters of the State.

(c) The Secretary shall submit the program report to the House Committees on Agriculture and Forest Products, on Transportation, and on Natural Resources and Energy and to the Senate Committees on Agriculture and on Natural Resources and eEergy.

(d)(1) The Secretary shall initiate rulemaking by October 15, 2004, and shall adopt a rule for a stormwater management program by June 15, 2005. The rule shall be adopted in accordance with 3 V.S.A. chapter 25 and shall include:

(A) the regulatory elements of the program identified in subsection (b) of this section, including the development and use of offsets and the establishment and imposition of stormwater impact fees to apply when issuing permits that allow regulated stormwater runoff to stormwater-impaired waters;

(B) requirements concerning the contents of permit applications that include, at a minimum, for regulated stormwater runoff, the permit application requirements contained in the Agency's 1997 stormwater management procedures;

(C) a system of notifying interested persons in a timely way of the Agency's receipt of stormwater discharge applications, provided any alleged failures with respect to such notice shall not be relevant in any Agency permit decision or any appeals brought pursuant to section 1269 of this chapter;

(D) requirements concerning a permit for discharges of regulated stormwater runoff from the development, redevelopment, or expansion of impervious surfaces equal to or greater than one acre or any combination of development, redevelopment, and expansion of impervious surfaces equal to or greater than one acre; and

(E) requirements concerning a permit for discharges of regulated stormwater runoff from an impervious surface of any size to stormwater-impaired waters if the Secretary determines that treatment is necessary to reduce the adverse impact of such stormwater discharges due to the size of the impervious surface, drainage patterns, hydraulic connectivity, existing stormwater treatment, or other factors identified by the Secretary.

(2) Notwithstanding 3 V.S.A. § 840(a), the Secretary shall hold at least three public hearings in different areas of the State regarding the proposed rule.

(e)(1) Except as otherwise may be provided in subsection (f) of this section, the Secretary shall, for new stormwater discharges, require a permit for discharge of, regulated stormwater runoff consistent with, at a minimum, the 2002 Stormwater Management Manual. The Secretary may issue, condition, modify, revoke, or deny discharge permits for regulated stormwater runoff, as necessary to assure achievement of the goals of the program and compliance with State law and the federal Clean Water Act. The permit shall specify the use of best management practices to control regulated stormwater runoff. The permit shall require as a condition of approval, proper operation, and maintenance of any stormwater management facility and submittal by the permittee of an annual inspection report on the operation, maintenance and condition of the stormwater management system. The permit shall contain additional conditions, requirements, and restrictions as the Secretary deems necessary to achieve and maintain compliance with the water quality standards, including requirements concerning recording, reporting, and monitoring the effects on receiving waters due to operation and maintenance of stormwater management facilities.

(2) As one of the principal means of administering an enhanced stormwater program, the Secretary may issue and enforce general permits. To the extent appropriate, such permits shall include the use of certifications of compliance by licensed professional engineers practicing within the scope of their engineering specialty. The Secretary may issue general permits for classes of regulated stormwater runoff permittees and may specify the period of time for which the permit is valid other than that specified in subdivision 1263(d)(4) of this title when such is consistent with the provisions of this section. General permits shall be adopted and administered in accordance with the provisions of subsection 1263(b) of this title. No permit is required under this section for:

(A) Stormwater runoff from farms subject to accepted agricultural practices adopted by the Secretary of Agriculture, Food and Markets;

(B) Stormwater runoff from concentrated animal feeding operations that require a permit under subsection 1263(g) of this chapter; or

(C) Stormwater runoff from silvicultural activities subject to accepted management practices adopted by the Commissioner of Forests, Parks and Recreation.

(3) Prior to issuing a permit under this subsection, the Secretary shall review the permit applicant's history of compliance with the requirements of this chapter. The Secretary may, at his or her discretion and as necessary to assure achievement of the goals of the program and compliance with State law and the federal Clean Water Act, deny an application for the discharge of regulated stormwater under this subsection if review of the applicant's compliance history indicates that the applicant is discharging regulated stormwater in violation of this chapter or is the holder of an expired permit for an existing discharge of regulated stormwater.

(f)(1) In a stormwater-impaired water, the Secretary may issue:

(A) An individual permit in a stormwater-impaired water for which no TMDL, water quality remediation plan, or watershed improvement permit has been established or issued, provided that the permitted discharge meets the following discharge standard: prior to the issuance of a general permit to implement a TMDL or a water quality remediation plan, the discharge meets the net-zero standard;

(B) An individual permit or a general permit to implement a TMDL or water quality remediation plan in a stormwater-impaired water, provided that the permitted discharge meets the following discharge standard:

(i) a new stormwater discharge or the expansion of an existing discharge shall meet the treatment standards for new development and expansion in the 2002 Stormwater Management Manual and any additional requirements deemed necessary by the Secretary to implement the TMDL or water quality remediation plan;

(ii) for a discharge of regulated stormwater runoff from redeveloped impervious surfaces:

(I) the existing impervious surface shall be reduced by 20 percent, or a stormwater treatment practice shall be designed to capture and treat 20 percent of the water quality volume treatment standard of the 2002 Stormwater Management Manual from the existing impervious surface; and

(II) any additional requirements deemed necessary by the Secretary to implement the TMDL or the water quality remediation plan;

(iii) an existing stormwater discharge shall meet the treatment standards deemed necessary by the Secretary to implement a TMDL or a water quality remediation plan;

(iv) if a permit is required for an expansion of an existing impervious surface or for the redevelopment of an existing impervious surface, discharges from the expansion or from the redeveloped portion of the existing impervious surface shall meet the relevant treatment standard of the 2002 Stormwater Management Manual, and the existing impervious surface shall meet the treatment standards deemed necessary by the Secretary to implement a TMDL or the water quality remediation plan;

(C) A watershed improvement permit, provided that the watershed improvement permit provides reasonable assurance of compliance with the Vermont water quality standards in five years;

(D) A general or individual permit that is implementing a TMDL or water quality remediation plan; or

(E) A statewide general permit for new discharges that the Secretary deems necessary to assure attainment of the Vermont Water Quality Standards.

(2) An authorization to discharge regulated stormwater runoff pursuant to a permit issued under this subsection shall be valid for a time period not to exceed five years. A person seeking to discharge regulated stormwater runoff after the expiration of that period shall obtain an individual permit or coverage under a general permit, whichever is applicable, in accordance with subsection 1263(e) of this title.

(3) By January 15, 2010, the Secretary shall issue a watershed improvement permit, issue a general or individual permit implementing a TMDL approved by the EPA, or issue a general or individual permit implementing a water quality remediation plan for each of the stormwater-impaired waters on the Vermont Year 2004 Section 303(d) List of Waters required by 33 U.S.C. 1313(d). In developing a TMDL or a water quality remediation plan for a stormwater-impaired water, the Secretary shall consult "A Scientifically Based Assessment and Adaptive Management Approach to Stormwater Management" and "Areas of Agreement about the Scientific Underpinnings of the Water Resources Board's Original Seven Questions" set out in appendices A and B, respectively, of the final report of the Water Resources Board's "Investigation Into Developing Cleanup Plans For Stormwater Impaired Waters, Docket No. Inv-03-01," issued March 9, 2004. Beginning January 30, 2005 and until a watershed improvement permit, a general or individual permit implementing a TMDL, or a general or individual permit implementing a water quality remediation plan is set for each of the stormwater-impaired waters on the Vermont Year 2004 Section 303(d) List of Waters required by 33 U.S.C. § 1313(d), the Secretary shall report annually to the General Assembly on Agency progress in establishing the watershed improvement permits, TMDLs, and water quality remediation plans for the stormwater-impaired waters of the State; on the accuracy of assessment and environmental efficacy of any stormwater impact fee paid to the State Stormwater-Impaired Waters Restoration Fund; and on the efforts by the Secretary to educate and inform owners of real estate in watersheds of stormwater-impaired waters regarding the requirements of the state stormwater law.

(4) Discharge permits issued under this subsection shall require BMP-based stormwater treatment practices. Permit compliance shall be judged on the basis of performance of the terms and conditions of the discharge permit, including construction and maintenance in accordance with BMP specifications. Any permit issued for a new stormwater discharge or for the expanded portion of an existing discharge pursuant to this subsection shall require compliance with BMPs for stormwater collection and treatment established by the 2002 Stormwater Management Manual, and any additional requirements for stormwater treatment and control systems as the Secretary determines to be necessary to ensure that the permitted discharge does not cause or contribute to a violation of the Vermont water quality standards.

(5) In addition to any permit condition otherwise authorized under subsection (e) of this section, in any permit issued pursuant to this subsection, the Secretary may require an offset or stormwater impact fee as necessary to ensure the discharge does not cause or contribute to a violation of the Vermont Water Quality Standards. Offsets and stormwater impact fees, where utilized, shall incorporate an appropriate margin of safety to account for the variability in quantifying the load of pollutants of concern. To facilitate utilization of offsets and stormwater impact fees, the Secretary shall identify by January 1, 2005 a list of potential offsets in each of the waters listed as a stormwater-impaired water under this subsection.

(g)(1) The Secretary may issue a permit consistent with the requirements of subsection (f) of this section, even where a TMDL or wasteload allocation has not been prepared for the receiving water. In any appeal under this chapter an individual permit meeting the requirements of subsection (f) of this section shall have a rebuttable presumption in favor of the permittee that the discharge does not cause or contribute to a violation of the Vermont Water Quality Standards for the receiving waters with respect to the discharge of regulated stormwater runoff. This rebuttable presumption shall only apply to permitted discharges into receiving waters that are principally impaired by sources other than regulated stormwater runoff.

(2) This subsection shall apply to stormwater permits issued under the federally delegated NPDES program only to the extent allowed under federal law.

(h) The rebuttable presumption specified in subdivision (g)(1) of this section shall also apply to permitted discharges into receiving waters that meet the water quality standards of the State, provided the discharge meets the requirements of subsection (e) of this section.

(i) A residential subdivision may transfer a pretransition stormwater discharge permit or a stormwater discharge permit implementing a total maximum daily load plan to a municipality, provided that the municipality assumes responsibility for the permitting of the stormwater system that serves the residential subdivision. As used in this section:

(1) "Pretransition stormwater discharge permit" means any permit issued by the Secretary of Natural Resources pursuant to this section on or before June 30, 2004 for a discharge of stormwater.

(2) "Residential subdivision" means land identified and demarcated by recorded plat or other device that a municipality has authorized to be used primarily for residential construction.

(j) Notwithstanding any other provision of law, if an application to discharge stormwater runoff pertains to a telecommunications facility as defined in 30 V.S.A. § 248a and is filed before July 1, 2014 and the discharge will be to a water that is not principally impaired by stormwater runoff:

(1) The Secretary shall issue a decision on the application within 40 days of the date the Secretary determines the application to be complete, if the application seeks authorization under a general permit.

(2) The Secretary shall issue a decision on the application within 60 days of the date the Secretary determines the application to be complete, if the application seeks or requires authorization under an individual permit.

(k) The Secretary may adopt rules regulating stormwater discharges and stormwater infrastructure repair or maintenance during a state of emergency declared under 20 V.S.A. chapter 1 or during flooding or other emergency conditions that pose an imminent risk to life or a risk of damage to public or private property. Any rule adopted under this subsection shall comply with National Flood Insurance Program requirements. A rule adopted under this subsection shall include a requirement that an activity receive an individual stormwater discharge emergency permit or receive coverage under a general stormwater discharge emergency permit.

(1) A rule adopted under this subsection shall establish:

(A) criteria for coverage under an individual or general emergency permit;

(B) criteria for different categories of activities covered under a general emergency permit;

(C) requirements for public notification of permitted activities, including notification after initiation or completion of a permitted activity;

(D) requirements for coordination with State and municipal authorities;

(E) requirements that the Secretary document permitted activity, including, at a minimum, requirements for documenting permit terms, documenting permit duration, and documenting the nature of an activity when the rules authorize notification of the Secretary after initiation or completion of the activity.

(2) A rule adopted under this section may:

(A) establish reporting requirements for categories of activities;

(B) authorize an activity that does not require reporting to the Secretary; or

(C) authorize an activity that requires reporting to the Secretary after initiation or completion of an activity. (Added 1981, No. 222 (Adj. Sess.), § 25; amended 1987, No. 282 (Adj. Sess.), § 14; 1999, No. 114 (Adj. Sess.), § 3, eff. May 19, 2000; 2001, No. 61, § 43, eff. June 16, 2001; 2001, No. 109 (Adj. Sess.), §§ 2-4, eff. May 16, 2002; 2003, No. 42, § 2, eff. May 27, 2003; 2003, No. 115 (Adj. Sess.), § 28, eff. Jan. 31, 2005; 2003, No. 140 (Adj. Sess.), § 1; 2005, No. 78, § 14, eff. June 24, 2005; 2005, No. 154 (Adj. Sess.), §§ 2, 3, eff. May 17, 2006; 2007, No. 43, § 1, eff. May 23, 2007; 2007, No. 130 (Adj. Sess.), § 5, eff. May 12, 2008; 2011, No. 53, § 3, eff. May 27, 2011; 2011, No. 91 (Adj. Sess.), § 1, eff. Jan. 15, 2012; 2011, No. 138 (Adj. Sess.), § 6, eff. May 14, 2012.)

§ 1264a. Repealed. 2003, No. 140 (Adj. Sess.), § 10(a), eff. January 15, 2012.

§ 1264b. Stormwater-impaired waters restoration fund

(a) A fund to be known as the stormwater-impaired waters restoration fund is created in the state treasury to be expended by the secretary of natural resources. The fund shall be administered by the secretary of natural resources through the facilities engineering division. The fund shall consist of:

(1) Stormwater impact fees paid by permittees in order to meet applicable permitting standards for the discharges of regulated stormwater runoff to the stormwater-impaired waters of the state;

(2) Such sums as may be appropriated or transferred to the fund by the general assembly, the state emergency board, or the joint fiscal committee during such times when the general assembly is not in session;

(3) Principal and interest received from the repayment of loans made from the fund;

(4) Private gifts, bequests, and donations made to the state for any of the purposes for which the fund was established; and

(5) Other funds from any public or private source intended for use for any of the purposes for which the fund has been established.

(b) The fund shall maintain separate accounts for each stormwater-impaired water and the monies in each account may only be used to fund offsets in the designated water. Offsets shall be designed to reduce the sediment load or hydrologic impact of regulated stormwater runoff in stormwater-impaired waters. All balances in the fund at the end of any fiscal year shall be carried forward and remain a part of the fund. Interest earned by the fund shall be deposited into the fund.

(c) The facilities engineering division may authorize disbursements from the fund to offsets that meet the requirements of subsection 1264a(e) of this title. The public funds used to capitalize the stormwater-impaired waters restoration fund shall:

(1) Be disbursed only to an offset that is owned or operated by a municipality or a governmental subdivision, agency, or instrumentality; and

(2) Be disbursed only to reimburse a municipality or a governmental subdivision, agency, or instrumentality for those funds provided by the municipality or governmental subdivision, agency, or instrumentality to complete or construct an offset.

(d) A municipality or governmental subdivision, agency, or instrumentality may, on an annual basis, reserve capacity in an offset that the municipality or governmental subdivision, agency, or instrumentality operates or owns and that meets the requirements of subsection 1264a(e) of this title. A municipality or governmental subdivision, agency, or instrumentality reserving offset capacity shall inform the secretary of natural resources of the offset capacity for which the offset will not receive disbursements from the stormwater-impaired waters restoration fund for nonmunicipal discharges. A municipality that reserves capacity as an offset may receive disbursements from the fund to mitigate the uncontrolled sediment load or hydrologic impact in discharges for which the municipality is issued a permit for the discharge of regulated stormwater runoff under subdivision 1264a(b)(1) of this title.

(e) Eligible persons may apply for a grant from the fund to design and implement an offset. The fund may be used to match other public and private sources of funding for such projects. The funds may also be used to match federal funds otherwise available to capitalize the fund created by 24 V.S.A. § 4753(a)(8).

(f) A discharger that pays a stormwater impact fee to the stormwater-impaired waters restoration fund under section 1264a of this title in order to receive a permit for the discharge of regulated stormwater runoff may receive reimbursement of that fee if the discharger fails to discharge under the stormwater discharge permit, if the discharger notifies the secretary of the abandonment of the discharge permit, and if the secretary determines that unobligated monies for reimbursement remain in the stormwater-impaired restoration fund. (Added 2003, No. 140 (Adj. Sess.), § 3.)

§ 1264c. Repealed. 2005, No. 154 (Adj. Sess.), § 8, eff. September 30, 2012.

§ 1265. Temporary pollution permits

(a) A person who does not qualify for or has been denied a waste discharge permit under section 1263 of this title may apply to the Secretary for a temporary pollution permit. Application shall be made on a form prescribed by the Secretary and shall contain information as the Secretary may require. The person shall pay to the Secretary at the time of submitting the application a fee in accordance with 3 V.S.A. § 2822. The Secretary may require the person to submit any additional information he or she considers necessary for proper evaluation.

(b) The Secretary shall give notice of each application to the public and any appropriate officials of another state and the federal government including the administrator of the United States Environmental Protection Agency, and shall provide an opportunity for written comments or a public hearing, or, both on the application before ruling on the application. The Secretary may require the applicant to submit any additional information which he or she considers necessary, and may refuse to grant a permit until the information is furnished and evaluated.

(c) After consideration of the application, any additional information furnished and all written comments submitted, and the record of any public hearings the Secretary shall grant or deny a temporary pollution permit. No such permit shall be granted by the Secretary unless he or she affirmatively finds:

(1) the proposed discharge does not qualify for a discharge permit;

(2) the applicant is constructing, installing, or placing into operation or has submitted plans and reasonable schedules for the construction, installation, or operation of an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treatment or disposal is known or recognized but he or she is making a bona fide effort through research and other means to discover and implement such a method;

(3) the applicant needs permission to pollute the waters of the State for a period of time necessary to complete research, planning, construction, installation, or the operation of an approved and acceptable pollution abatement facility or alternate waste disposal system;

(4) there is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the State;

(5) the denial of a temporary pollution permit would work an extreme hardship upon the applicant;

(6) the granting of a temporary pollution permit will result in some public benefit;

(7) the discharge will not be unreasonably destructive to the quality of the receiving waters;

(8) the proposed discharge will not violate any applicable provisions of State or federal laws or regulations.

(d) Any temporary pollution permit issued shall:

(1) specify the manner, nature, volume, and frequency of the discharge permitted;

(2) require the proper operation and maintenance of any interim or temporary pollution abatement facility or system required by the Secretary as a condition of the permit, to include but not to be limited to all terms and conditions authorized under subsection 1263(c) of this title;

(3) require the permit holder to maintain monitoring equipment and make and file such records and reports as the Secretary deems necessary to insure compliance with the terms of the permit and evaluate the effect of the discharge upon the receiving waters;

(4) be valid only for the period of time, not exceeding five years, necessary for the permit holder to place into operation the facility, system, or method required to obtain a permit under section 1263. However, the terms of the permit may be amended upon application of the permit holder and a finding by the Secretary that the amendment meets all of the requirements of subsection (c) of this section. Upon application of the permit holder and a finding by the Secretary that the amendment meets all of the requirements of subsection (c) of this section and that there is a substantial change in circumstances not under the control of the permit holder, the terms of the permit may be amended following all determinations and procedures for initial permit application; and

(5) Repealed.]

(6) contain other requirements, restrictions and conditions which the Secretary deems necessary and desirable to protect the quality of the receiving waters and promote the public interest.

(e), (f) Repealed.]  (Added 1969, No. 252 (Adj. Sess.), § 12, eff. April 4, 1970; amended 1971, No. 93, § 1, eff. April 22, 1971; 1971, No. 255 (Adj. Sess.), §§ 4, 5, 10, 11, eff. April 11, 1972; 1973, No. 103, § 7, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1987, No. 76, § 5; 1989, No. 278 (Adj. Sess.), § 2; 2013, No. 34, § 6.)

§§ 1265aRepealed. 2001, No. 133 (Adj. Sess.), § 14, eff. June 13, 2002.

§ 1266. Repealed. 2009, No. 46, § 4.

§ 1266a. Discharges of phosphorus

(a) No person directly discharging into the drainage basins of Lake Champlain or Lake Memphremagog shall discharge any waste that contains a phosphorus concentration in excess of 0.80 milligrams per liter on a monthly average basis. Discharges of less than 200,000 gallons per day, permitted on or before July 1, 1991, shall not be subject to the requirements of this subsection. Discharges from a municipally owned aerated lagoon type secondary sewage treatment plant in the Lake Memphremagog drainage basin, permitted on or before July 1, 1991 shall not be subject to the requirements of this subsection unless the plant is modified to use a technology other than aerated lagoons.

(b) Notwithstanding any provision of subsection (a) of this section to the contrary, the Secretary shall establish effluent phosphorus wasteload allocations or concentration limits within any drainage basin in Vermont, as needed to achieve wasteload allocations in a total maximum daily load document approved by the United States Environmental Protection Agency, or as needed to attain compliance with water quality standards adopted by the Secretary pursuant to chapter 47 of this title.

(c) The Secretary of Natural Resources shall establish a schedule for municipalities that requires compliance with this section at a rate that corresponds to the rate at which funds are provided under subsection 1625(e) of this title. To the extent that funds are not provided to municipalities eligible under that subsection, municipal compliance with this section shall not be required. (Added 1977, No. 39, § 6, eff. April 19, 1977; amended 1981, No. 222 (Adj. Sess.), § 25; 1991, No. 261 (Adj. Sess.), § 2; 1997, No. 51, § 2; 2001, No. 61, § 47, eff. June 16, 2001; 2003, No. 63, § 53, eff. June 11, 2003; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.)

§ 1266b. Application of phosphorus fertilizer

(a) Definitions. As used in this section:

(1) "Compost" means a stable humus-like material produced by the controlled biological decomposition of organic matter through active management, but shall not mean sewage, septage, or materials derived from sewage or septage.

(2) "Fertilizer" shall have the same meaning as in 6 V.S.A. § 363(5).

(3) "Impervious surface" means those manmade surfaces, including paved and unpaved roads, parking areas, roofs, driveways, and walkways, from which precipitation runs off rather than infiltrates.

(4) "Manipulated animal or vegetable manure" means manure that is ground, pelletized, mechanically dried, supplemented with plant nutrients or substances other than phosphorus or phosphate, or otherwise treated to assist with the use of manure as fertilizer.

(5) "Nitrogen fertilizer" means fertilizer labeled for use on turf in which the nitrogen content consists of less than 15 percent slow-release nitrogen.

(6) "Phosphorus fertilizer" means fertilizer labeled for use on turf in which the available phosphate content is greater than 0.67 percent by weight, except that "phosphorus fertilizer" shall not include compost or manipulated animal or vegetable manure.

(7) "Slow-release nitrogen" means nitrogen in a form that is released over time and that is not water-soluble nitrogen.

(8)(A) "Turf" means land planted in closely mowed, managed grasses, including residential and commercial property and publicly owned land, parks, and recreation areas.

(B) "Turf" shall not include:

(i) pasture, cropland, land used to grow sod, or any other land used for agricultural production; or

(ii) private and public golf courses.

(9) "Water" or "water of the state" means all rivers, streams, creeks, brooks, reservoirs, ponds, lakes, springs, and all bodies of surface waters, artificial or natural, which are contained within, flow through, or border upon the State or any portion of it.

(10) "Water-soluble nitrogen" means nitrogen in a water-soluble form that does not have slow-release properties.

(b) Application of phosphorus fertilizer.

(1) No person shall apply phosphorus fertilizer to turf except for:

(A) phosphorus fertilizer necessary for application to turf that is deficient in phosphorus as shown by a soil test performed no more than 18 months before the application of the fertilizer; or

(B) phosphorus fertilizer that is labeled as starter fertilizer and that is intended for application to turf when a property owner or an agent of a property owner is first establishing grass in turf via seed or sod procedures and the application of starter fertilizer is limited to the first growing season.

(2) On or before October 1, 2011, the Secretary of Agriculture, Food and Markets, after consultation with the University of Vermont, shall approve a standard, which may authorize multiple testing methods, for the soil test required under subdivision (1)(A) of this subsection.

(c) Application of nitrogen fertilizer. No person shall apply nitrogen fertilizer to turf.

(d) Application of fertilizer to impervious surface; in proximity to water; and seasonal restriction. No person shall apply any fertilizer:

(1) to an impervious surface. Fertilizer applied or released to an impervious surface shall be immediately collected and returned to a container for legal application. This subdivision shall not apply to activities regulated under the accepted agricultural practices as those practices are defined by the Secretary of Agriculture, Food and Markets under 6 V.S.A. § 4810;

(2) to turf before April 1 or after October 15 in any calendar year or at any time when the ground is frozen; or

(3) to turf within 25 feet of a water of the State.

(e) Retail display of phosphorus fertilizer. If a retailer sells or offers for sale phosphorus fertilizer to consumers and consumers have direct access to the phosphorus fertilizer, the retailer shall:

(1) In the retail area where phosphorus fertilizer is accessible by a consumer, display nonphosphorus fertilizer separately from phosphorus fertilizer; and

(2) Post in the retail location, if any, where phosphorus fertilizer is accessible by the consumer a clearly visible sign that is at least eight and one-half inches by 11 inches in size and that states "Phosphorus runoff poses a threat to water quality. Most Vermont lawns do not benefit from fertilizer containing phosphorus. Under Vermont law, fertilizer containing phosphorus shall not be applied to lawn unless applied to new lawn or lawn that is deficient for phosphorus as indicated by a soil test."

(f) Violations. A person who knowingly and intentionally violates this section shall be subject to a civil penalty of not more than $500.00 per violation. A violation of this section shall be enforceable in the Judicial Bureau pursuant to the provisions of 4 V.S.A. chapter 29 in an action that may be brought by the Agency of Agriculture, Food and Markets or the Agency of Natural Resources. (Added 2011, No. 37, § 1, eff. Jan. 1, 2012.)

§ 1267. Revocation of permits

The secretary may, after notice and opportunity for public hearing, under 3 V.S.A. § 814(c), revoke, modify or suspend any permit issued by the secretary pursuant to this subchapter upon finding that the permit holder submitted false or inaccurate information in the application or has violated any requirement, restrictions or condition of the permit or that there is a change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge. The secretary shall impose conditions as the secretary deems reasonable for regulating the discharges of a person whose permit has been revoked, modified or suspended. Revocation shall be effective upon actual notice thereof to the permit holder. When the secretary determines, after consultation with the commissioner of the department of health, that a violation threatens the public health, the secretary shall suspend the permit until the permit holder removes the risk. (Added 1969, No. 252 (Adj. Sess.), § 13, eff. April 4, 1970; amended 1973, No. 103, § 8, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 8, eff. May 17, 1986.)

§ 1268. Emergency permits

When a discharge permit holder finds that pollution abatement facilities require repairs, replacement or other corrective action in order for them to continue to meet standards specified in the permit, he or she may apply in the manner specified by the secretary for an emergency pollution permit for a term sufficient to effect repairs, replacements or other corrective action. The permit may be issued without prior public notice if the nature of the emergency will not provide sufficient time to give notice; provided that the secretary shall give public notice as soon as possible but in any event no later than five days after the effective date of the emergency pollution permit. No emergency pollution permit shall be issued unless the applicant certifies and the secretary finds that:

(1) there is no present, reasonable alternative means of disposing of the waste other than by discharging it into the waters of the state during the limited period of time of the emergency;

(2) the denial of an emergency pollution permit would work an extreme hardship upon the applicant;

(3) the granting of an emergency pollution permit will result in some public benefit;

(4) the discharge will not be unreasonably harmful to the quality of the receiving waters;

(5) the cause or reason for the emergency is not due to wilful or intended acts or omissions of the applicant. (Added 1981, No. 222 (Adj. Sess.), § 25.)

§ 1269. Appeals

Appeals of any act or decision of the secretary under this chapter shall be made in accordance with chapter 220 of this title. (Added 1969, No. 252 (Adj. Sess.), § 14, eff. April 4, 1970; 1981, No. 222 (Adj. Sess.), § 25; 2003, No. 115 (Adj. Sess.), § 29, eff. Jan. 31, 2005.)

§ 1270. Repealed. 2005, No. 115 (Adj. Sess.), § 119(b).

§ 1271. Extension of municipal sewer system; filing map; approval

No municipality shall extend its sewer system until it has filed a copy of its plan for the extension with the secretary and has received the secretary's approval. (Amended 1961, No. 100, § 2; 1973, No. 103, § 9, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25.)

§ 1272. Regulation of activities causing discharge or affecting significant wetlands

If the Secretary finds that any person's action, or an activity, results in the construction, installation, operation, or maintenance of any facility or condition which reasonably can be expected to create or cause a discharge to waters in violation of this subchapter, or to violate the Secretary's rules under section 905b of this title relating to significant wetlands, the Secretary may issue an order establishing reasonable and proper methods and procedures for the control of that activity and the management of substances used therein which cause discharges or violations of the Secretary's rules with respect to significant wetlands in order to reduce or eliminate those discharges and rule violations with respect to significant wetlands. (Added 1969, No. 252 (Adj. Sess.), § 15, eff. April 4, 1970; amended 1971, No. 255 (Adj. Sess.), § 6, eff. April 11, 1972; 1973, No. 103, § 10, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 188 (Adj. Sess.), § 4; 2003, No. 115 (Adj. Sess.), § 30, eff. Jan. 31, 2005; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.)

§ 1273. Repealed. 1969, No. 252 (Adj. Sess.), § 18, eff. April 4, 1970.

§ 1274. Enforcement

(a) Notwithstanding any other provision or procedure set forth in this chapter, if the secretary finds that any person has discharged or is discharging any waste in violation of this chapter or that any person has failed to comply with any provisions of any order or permit issued in accordance with this chapter, the secretary may bring suit in the superior court in any county where the discharge or noncompliance has occurred to enjoin the discharge and to obtain compliance. The suit shall be brought by the attorney general in the name of the state. The court may issue a temporary injunction or order in any such proceedings and may exercise all the plenary powers available to it in addition to the power to:

(1) Enjoin future discharges.

(2) Order the design, construction, installation or operation of pollution abatement facilities or alternate waste disposal systems.

(3) Order the removal of all wastes discharged and the restoration of water quality.

(4) Fix and order compensation for any public property destroyed, damaged or injured. Compensation for fish taken or destroyed shall be deposited into the fish and wildlife fund.

(5) Assess and award punitive damages.

(6) Levy civil penalties not to exceed $10,000.00 a day for each day of violation.

(7) Order reimbursement to any agency of federal, state or local government from any person whose discharge caused governmental expenditures.

(b) The secretary, by rule, shall define those violations which are significant, based upon the magnitude, duration, consequences and causes of the violation. When a significant violation occurs, the secretary may initiate proceedings to compel compliance by and seek penalties from the violator. A court, upon finding that such a violation has occurred, shall order compliance and retain jurisdiction to assure that compliance schedules are met. The court also shall impose penalties. Action under this section shall not restrict the secretary's authority to proceed under section 1267 of this title. (Added 1969, No. 252 (Adj. Sess.), § 16, eff. April 4, 1970; amended 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972; 1973, No. 103, § 11, eff. April 24, 1973; 1973, No. 112, § 4, eff. April 25, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.),§§ 9, 10, eff. May 17, 1986; 1989, No. 205 (Adj. Sess.), § 3.)

§ 1275. Penalty

(a) Any person who violates any provision of this subchapter or who fails, neglects or refuses to obey or comply with any order or the terms of any permit issued in accordance with this subchapter, shall be fined not more than $25,000.00 or be imprisoned not more than six months, or both. Each violation may be a separate offense and, in the case of a continuing violation, each day's continuance may be deemed a separate offense.

(b) Any person who knowingly makes any false statement, representation or certification in any application, record, report, plan, or other document filed or required to be maintained under this subchapter, or by any permit, rule, regulation or order issued under this subchapter, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this subchapter or by any permit, rule, regulation, or order issued under this subchapter, shall upon conviction, be punished by a fine of not more than $10,000.00 or by imprisonment for not more than six months, or by both. (Amended 1969, No. 252 (Adj. Sess.), § 9, eff. April 4, 1970; 1973, No. 103, § 12, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25.)

§ 1276. Construction

Nothing contained in this subchapter shall be construed to prohibit or require a permit for the proper use of waters for customary sport and recreational purposes such as fishing, swimming and boating if the classification of the water permits that usage. In the event of an irreconcilable conflict between the provisions of this subchapter and chapter 25 of Title 3, the provisions of this subchapter shall prevail. Nothing in this subchapter shall be construed to affect, impair or abridge the right of riparian or littoral owners or others to sue for damages or injunctions or exercise any other common law or statutory remedy to abate and recover damages for water pollution. If a permit holder is required to pay such damages by judgment or order of a court, the amount of damages shall be a credit against any pollution charges due under this subchapter. Any permit granted under this subchapter shall not be construed as a vested right and shall be subject to continuing regulations and control by the state. (Added 1969, No. 252 (Adj. Sess.), § 17, eff. April 4, 1970; amended 1981, No. 222 (Adj. Sess.), § 25.)

§ 1277. Municipal sewage treatment plants

If, after public hearing, the secretary finds that:

(1) any municipality is discharging untreated or improperly treated sewage or stormwater into waters of the state or that conditions exist in any municipality or combination of municipalities which cause or threaten to cause a reduction in the quality of ground or surface waters; and

(2) the discharge or condition can most effectively be corrected or abated by the construction and installation of a sewage collection and treatment system or a stormwater collection and treatment system or by other management practices, and after giving due regard to regional development factors, he or she may order the municipality or combination of municipalities to provide the facilities or undertake the practices necessary to correct or abate the discharge or condition. In the case of correcting or abating a discharge of stormwater runoff not created by a municipality, the secretary may order the municipality or combination of municipalities to provide the facilities or undertake the practices necessary to correct or abate the discharge or condition if the municipality or combination of municipalities has in place a mechanism to recover the costs from users. The order shall include a reasonable time schedule for action by the municipality or municipalities to place the facilities into operation. This section does not abridge any duty or remedy created by this subchapter. (Added 1969, No. 252 (Adj. Sess.), § 22, eff. April 4, 1970; amended 1981, No. 222 (Adj. Sess.), § 25; 2001, No. 109 (Adj. Sess.), § 14, eff. May 16, 2002.)

§ 1278. Operation, management, and emergency response plans for pollution abatement facilities

(a) Findings. The general assembly finds that the state shall protect Vermont's lakes, rivers, and streams from pollution by implementing programs to prevent sewage spills to Vermont waters and by requiring emergency planning to limit the damage from spills which do occur. In addition, the general assembly finds it to be cost-effective and generally beneficial to the environment to continue state efforts to ensure energy efficiency in the operation of treatment facilities.

(b) Planning requirement. Effective July 1, 2007, the secretary of natural resources shall as part of a permit issued under section 1263 of this title, require a pollution abatement facility, as that term is defined in section 1571 of this title, to prepare and implement an operation, management, and emergency response plan for those portions of each pollution abatement facility that include the treatment facility, the sewage pumping stations, and the sewer line stream crossing.

(c) Collection system planning. As of July 1, 2010, the secretary of natural resources, as part of a permit issued under section 1263 of this title, shall require a pollution abatement facility, as that term is defined in section 1571 of this title, to prepare and implement an operation, management, and emergency response plan for that portion of each pollution abatement facility that includes the sewage collection systems. The requirement to develop a plan under this subsection shall be included in a permit issued under section 1263 of this title, and a plan developed under this subsection shall be subject to public review and inspection.

(d) Plan components. An operation, management, and emergency response plan shall include the following:

(1) Identification of those elements of the facility, including collection systems that are determined to be prone to failure based on installation, age, design, or other relevant factors.

(2) Identification of those elements of the facility identified under subdivision (1) of this subsection which, if one or more failed, would result in a significant release of untreated or partially treated sewage to surface waters of the state.

(3) A requirement that the elements identified in subdivision (2) of this subsection shall be inspected in accordance with a schedule approved by the secretary of natural resources.

(4) An emergency contingency plan to reduce the volume of a detected spill and to mitigate the effect of such a spill on public health and the environment.

(e) Notice of certain discharges. The secretary of natural resources shall post publicly notice of an illegal discharge that may pose a threat to human health or the environment on its website within 24 hours of the agency's receipt of notification of the discharge. (Added 2005, No. 154 (Adj. Sess.), § 5a, eff. July 1, 2006; amended 2007, No. 130 (Adj. Sess.), § 8, eff. May 12, 2008; 2007, No. 209 (Adj. Sess.), § 5.)

§ 1279. Repealed. 1985, No. 53, § 3.

§ 1280. Emergency actions

Notwithstanding any other provision of this chapter, upon receipt of evidence that a pollution source or combination of sources, including industrial users of publicly owned treatment works, is presenting an imminent and substantial endangerment to water or groundwaters or to the health of persons or to the welfare of persons by endangering their livelihood, the secretary may bring suit on behalf of the state in superior court in the county where the source is located to immediately restrain any person causing or contributing to the alleged pollution to stop the discharge or introduction of the waste causing or contributing to that pollution or to take other action as may be necessary. (Added 1973, No. 103, § 15, eff. April 24, 1973; amended 1981, No. 222 (Adj. Sess.), § 25.)

§ 1281. Oil and other hazardous materials

(a) The secretary shall adopt rules relating to the handling, storage and transport of oil and other hazardous materials within the state of Vermont for the purpose of preventing the discharge of any oil and other hazardous materials directly or indirectly into the waters of the state. The secretary shall coordinate any proposed rule relating to oil or other hazardous materials with the secretary of human services and the commissioner of labor to assure the absence of conflict.

(b) Any rule adopted under this section or section 1282 of this title shall be presented immediately to the clerk of the house of representatives and the secretary of the senate who shall immediately publish it in their respective calendars. If the general assembly is not in session at the time a rule or regulation is adopted, publication in the calendars shall occur within 10 days after the general assembly next convenes. The general assembly may repeal a rule or regulation. (Added 1973, No. 112, § 5, eff. April 25, 1973; amended 1981, No. 222 (Adj. Sess.), § 25; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.)

§ 1282. Contingency plans; adoption

(a) The secretary shall develop and implement a statewide contingency plan which shall provide for the coordination of the activities of state agencies and municipalities for the purpose of controlling, undertaking cleanup operations or otherwise mitigating the effects of a spillage of oil or other hazardous materials which is likely to reach the waters of the state either directly or indirectly.

(b) The plan developed in accordance with this section shall be submitted to and approved by the governor prior to becoming effective. (Added 1973, No. 112, § 6, eff. April 25, 1973; amended 1981, No. 222 (Adj. Sess.), § 25.)

§ 1283. Contingency fund

(a) An environmental contingency fund is established within the control of the secretary. Subject to the limitations contained in subsection (b) of this section, disbursements from the fund may be made by the secretary to undertake actions that the secretary considers necessary to investigate or mitigate, or both, the effects of hazardous material releases to the environment.

(b) Disbursements under this subsection may be made for emergency purposes or to respond to other than emergency situations; provided, however, that disbursements in response to an individual situation which is not an emergency situation shall not exceed $100,000.00 for costs attributable to each of the subdivisions of this subsection, unless the secretary has received the approval of the general assembly, or the joint fiscal committee, in case the general assembly is not in session. Furthermore, the balance in the fund shall not be drawn below the amount of $100,000.00, except in emergency situations. If the balance of the fund becomes insufficient to allow a proper response to one or more emergencies that have occurred, the secretary shall appear before the emergency board, as soon as possible, and shall request that necessary funds be provided. Within these limitations, disbursements from the fund may be made:

(1) to initiate spill control procedures, removal actions and remedial actions to clean up spills of hazardous materials where the discharging party is unknown, cannot be contacted, is unwilling to take action or does not take timely action that the secretary considers necessary to mitigate the effects of the spill;

(2) to investigate an actual or threatened release to the environment of any pollutant or contaminant which may present an imminent and substantial danger to the public health and welfare or to the environment. The secretary may use this fund for those investigations necessary to:

(A) determine the magnitude and extent of the existing and potential public exposure and risk and environmental damage;

(B) determine appropriate remedial action to prevent or minimize the impact of such releases; or

(C) to prescribe other environmentally sound measures to protect the long-range public health and welfare or to ensure environmental protection, or to prescribe additional investigations to determine same;

(3) to take appropriate removal action to prevent or minimize