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House Calendar
Wednesday, February 26, 2014
51st DAY OF THE ADJOURNED SESSION
House Convenes at 1:00 P.M.
TABLE OF CONTENTS
Page No.
ACTION CALENDAR
Action Postponed Until February 26, 2014
Favorable with Amendment
H. 69
Licensed alcohol and drug abuse counselors as participating providers in
Medicaid ........................................................................................................ 703
Rep. Pugh for Human Services
NEW BUSINESS
Third Reading
H. 275
Professional licensing of members of the Armed Forces .................. 703
H. 589
Hunting, fishing, and trapping ........................................................... 703
Rep. Johnson of Canaan Amendment ........................................................... 703
Rep. Donahue et al Amendment .................................................................... 704
Committee Bill for Second Reading
H. 863
A Public Records Act exemption for the identity of whistleblowers 704
Rep. Cole for Government Operations
Favorable
S. 317
An act relating to repealing the unconstitutional Vermont statutes
related to the performance of abortions ......................................................... 704
Rep. Grad for Judiciary
NOTICE CALENDAR
Favorable with Amendment
H. 217
Smoking in partially enclosed structures, lodging establishments, and
state lands ...................................................................................................... 705
Rep. Frank for Human Services
H. 497
The open meeting law ....................................................................... 708
Rep. Townsend for Government Operations
H. 602
Municipal budget committees ........................................................... 716
Rep. Devereux for Government Operations
H. 685
Identification and registration of moorings ....................................... 718
Rep. Quimby for Fish, Wildlife and Water Resources
H. 695
Establishing a product stewardship program for primary batteries ... 720
Rep. Yantachka for Natural Resources and Energy
Favorable
H. 718
Approval of amendments to the charter of the Village of Derby Line
....................................................................................................................... 737
Rep. Lewis for Government Operations
H. 864
Capital construction and State bonding budget adjustment .............. 738
Rep. Emmons for Corrections and Institutions
Rep. Winters for Appropriations
Senate Proposal of Amendment
H. 583
The charge of the Vermont Child Poverty Council ........................... 738
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ORDERS OF THE DAY
ACTION CALENDAR
Action Postponed Until February 26, 2014
Favorable with Amendment
H. 69
An act relating to licensed alcohol and drug abuse counselors as
participating providers in Medicaid
Rep. Pugh of South Burlington,
for the Committee on
Human Services,
recommends the bill be amended by striking all after the enacting clause and
inserting in lieu thereof the following:
Sec. 1.
33 V.S.A. § 813 is added to read:
§ 813.
MEDICAID PARTICIPATING PROVIDERS
The Department of Vermont Health Access shall grant authorization to a
licensed alcohol and drug abuse counselor to participate as a Medicaid
provider to deliver clinical and case
coordination services to Medicaid
beneficiaries, regardless of whether the counselor is a preferred provider.
Sec. 2.
EFFECTIVE DATE
This act shall take effect on October 1, 2014.
( Committee Vote: 10-0-1)
NEW BUSINESS
Third Reading
H. 275
An act relating to professional licensing of members of the Armed Forces
H. 589
An act relating to hunting, fishing, and trapping
Amendment to be offered by Rep. Johnson of Canaan to H. 589
By striking out Sec. 12 in its entirety and inserting in lieu thereof the
following:
Sec. 12.
10 V.S.A. § 5408 is amended to read:
§ 5408.
LIMITATIONS
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(a)
Notwithstanding any provision of this chapter, after obtaining the
advice of the Endangered Species Committee, the Secretary may permit, under
such terms and conditions as the Secretary may prescribe by rule, any act
otherwise prohibited by this chapter if done for any of the following purposes:
scientific purposes; to enhance the propagation or survival of a species;
economic
hardship;
zoological
exhibition;
educational
purposes;
noncommercial cultural or ceremonial purposes; or special purposes consistent
with the purposes of the federal Endangered Species Act.
* * *
(g)
A permit issued under this section shall be valid for the period of time
specified in the permit, not to exceed five years.
A permit issued under this
section may be renewed upon application to the Secretary.
Amendment to be offered by Reps. Donahue of Northfield and McFaun
of Barre Town to H. 589
In Sec. 5, 10 V.S.A. § 4084, by striking out subdivision (a)(1) in its entirety
and inserting in lieu thereof the following:
(1)
establish open seasons; however, rules regarding taking of deer
adopted under this subdivision shall make provision for a regular rifle hunting
season pursuant to section 4741 of this title and of no less than 16 days, for an
archery season, and a muzzle loader season unless there is a scientific reason
not to do so;
Committee Bill for Second Reading
H. 863
An act relating to a Public Records Act exemption for the identity of
whistleblowers.
(Rep. Cole of Burlington
will speak for the Committee on
Government
Operations.)
Favorable
S. 317
An act relating to repealing the unconstitutional Vermont statutes related to
the performance of abortions
Rep. Grad of Moretown,
for the Committee on
Judiciary
, recommends
that the bill ought to pass in concurrence.
(Committee Vote: 9-0-2)
(No Senate Amendment )
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NOTICE CALENDAR
Favorable with Amendment
H. 217
An act relating to smoking in partially enclosed structures, lodging
establishments, and state lands
Rep.
Frank of Underhill,
for the Committee on
Human Services,
recommends the bill be amended by striking all after the enacting clause and
inserting in lieu thereof the following:
Sec. 1.
18 V.S.A. § 1421 is amended to read:
§ 1421.
SMOKING IN THE WORKPLACE; PROHIBITION
(a)
The use of lighted tobacco products is prohibited in any workplace.
(b)(1)
For the purposes of As used in this subchapter, “workplace” means
an enclosed structure where employees perform services for an employer or,
in, including restaurants, bars, and other establishments in which food or
drinks, or both, are served.
In the case of an employer who assigns employees
to departments, divisions, or similar organizational units, “workplace” means
the enclosed portion of a structure to which the employee is assigned.
* * *
(3)
For schools, workplace includes any enclosed location where
instruction or other school-sponsored functions are occurring and students are
present.
(4)
For lodging establishments used for transient traveling or public
vacationing, such as resorts, hotels, and motels, workplace includes the
sleeping quarters and adjoining rooms rented to guests.
* * *
Sec. 2.
18 V.S.A. § 1741 is amended to read:
§ 1741.
DEFINITIONS
As used in this chapter:
* * *
(2) “A place of public access” means any place of business, commerce,
banking, financial service, or other service-related activity, whether publicly or
privately owned and whether operated for profit or not, to which the general
public has access or which the general public uses, including.
The term
includes:
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(A)
buildings,;
(B)
offices,;
(C)
means of transportation,;
(D)
common carrier waiting rooms,;
(E)
arcades,;
(F)
restaurants, bars, and cabarets,;
(G)
retail stores,;
(H)
grocery stores,;
(I)
libraries,;
(J)
theaters, concert halls, auditoriums, and arenas,;
(K)
barber shops, and hair salons,;
(L)
laundromats,;
(M)
shopping malls,;
(N)
museums, and art galleries,;
(O)
sports and fitness facilities,;
(P)
planetariums,;
(Q)
historical sites,;
(R)
lodging
establishments
for
transient
traveling
or
public
vacationing, such as resorts, hotels, and motels;
(S)
common areas of nursing homes, and hospitals, resorts, hotels
and motels, including the lobbies, hallways, elevators, restaurants, restrooms,
and cafeterias,; and
(T)
buildings or facilities owned or operated by a social, fraternal, or
religious club.
(3)
“Hospital” means a place devoted primarily to the maintenance and
operation of diagnostic and therapeutic facilities for inpatient medical or
surgical care of individuals suffering from illness, disease, injury, or deformity,
or for obstetrics.
(4)
“Publicly owned buildings and offices” means enclosed indoor
places or portions of such places owned, leased, or rented by state State,
county, or municipal governments, or by agencies supported by appropriation
of, or by contracts or grants from, funds derived from the collection of federal,
state State, county, or municipal taxes.
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Sec. 3.
18 V.S.A. § 1742 is amended to read:
§ 1742.
RESTRICTIONS ON SMOKING IN PUBLIC PLACES
(a)
The possession of lighted tobacco products in any form is prohibited in:
(1)
the common areas of all enclosed indoor places of public access and
publicly owned buildings and offices;
(2)
designated smoke-free areas of property or grounds owned by or
leased to the State; and
(3)
any other area within 25 feet of State-owned buildings and offices,
except that to the extent that any portion of the 25-foot zone is not on State
property, smoking is prohibited only in that portion of the zone that is on State
property unless the owner of the adjoining property chooses to designate his or
her property smoke-free.
(b)
The possession of lighted tobacco products in any form is prohibited on
the grounds of any hospital or secure residential recovery facility owned or
operated by the State, including all enclosed places in the hospital or facility
and the surrounding outdoor property.
(c)
Nothing in this section shall be construed to restrict the ability of
residents of the Vermont Veterans’ Home to use lighted tobacco products in
the indoor area of the facility in which smoking is permitted.
Sec. 4.
16 V.S.A. § 140 is amended to read:
§ 140.
TOBACCO USE PROHIBITED ON PUBLIC SCHOOL GROUNDS
No person shall be permitted to use tobacco products or tobacco substitutes
as defined in 7 V.S.A. § 1001 on public school grounds and no student shall be
permitted to use tobacco or at public school sponsored functions.
Each public
school board shall adopt policies prohibiting the possession and use of tobacco
products and tobacco substitutes by students at all times while under the
supervision of school staff.
These policies shall include confiscation and
appropriate referrals to law enforcement authorities.
Sec. 5.
33 V.S.A. § 3504 is added to read:
§ 3504.
TOBACCO USE PROHIBITED AT CHILD CARE FACILITIES
(a)
No person shall be permitted to use tobacco products or tobacco
substitutes as defined in 7 V.S.A. § 1001 on the premises, both indoor and
outdoor, of any licensed child care center or afterschool program at any time.
(b)
No person shall be permitted to use tobacco products or tobacco
substitutes as defined in 7 V.S.A. § 1001 on the premises, both indoor and in
any outdoor area designated for child care, of a licensed or registered family
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child care home while children are present and in care.
If smoking occurs on
the premises during other times, the family child care home shall notify
prospective families prior to enrolling a child in the family child care home
that their child will be exposed to an environment in which tobacco products or
tobacco substitutes, or both, are used.
Sec. 6.
7 V.S.A. § 1001 is amended to read:
§ 1001.
DEFINITIONS
As used in this chapter:
* * *
(8) “Tobacco substitute” means products including electronic cigarettes
or other electronic or battery-powered devices that contain and are designed to
deliver nicotine or other substances into the body through inhaling vapor and
that have not been approved by the United States U.S. Food and Drug
Administration for tobacco cessation or other medical purposes.
Products that
have been approved by the U.S. Food and Drug Administration for tobacco
cessation or other medical purposes shall not be considered to be tobacco
substitutes.
Sec. 7.
EFFECTIVE DATE
This act shall take effect on July 1, 2014.
and that after passage the title of the bill be amended to read: “An act relating
to smoking in lodging establishments, hospitals, and child care facilities, and
on State lands”.
( Committee Vote: 11-0-0)
H. 497
An act relating to the open meeting law
Rep. Townsend of South Burlington,
for the Committee on
Government
Operations,
recommends the bill be amended by striking all after the enacting
clause and inserting in lieu thereof the following:
Sec. 1.
1 V.S.A. § 310 is amended to read:
§ 310.
DEFINITIONS
As used in this subchapter:
(1)
“Deliberations” means weighing, examining, and discussing the
reasons for and against an act or decision, but expressly excludes the taking of
evidence and the arguments of parties.
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(2)
“Meeting” means a gathering of a quorum of the members of a
public body for the purpose of discussing the business of the public body or for
the
purpose
of
taking
action.
“Meeting”
shall
not
mean
written
correspondence or an electronic communication, including e-mail, telephone,
or teleconferencing, between members of a public body for the purpose of
scheduling a meeting, organizing an agenda, or distributing materials to
discuss at a meeting, provided that such a written correspondence or such an
electronic communication that results in written or recorded information shall
be available for inspection and copying under the Public Records Act as set
forth in chapter 5, subchapter 3 of this title.
(3) “Public body” means any board, council, or commission of the state
State or one or more of its political subdivisions, any board, council, or
commission of any agency, authority, or instrumentality of the state State or
one or more of its political subdivisions, or any committee of any of the
foregoing boards, councils, or commissions, except that “public body” does not
include councils or similar groups established by the governor Governor for
the sole purpose of advising the governor Governor with respect to policy.
(4)
“Publicly announced” means that notice is given to an editor,
publisher, or news director of a newspaper or radio station serving the area of
the state State in which the public body has jurisdiction, and to any editor,
publisher, or news director person who has requested under subdivision
312(c)(5) of this title to be notified of special meetings.
(5) “Quasi-judicial proceeding” means a proceeding which is:
(A)
a contested case under the Vermont Administrative Procedure
Act; or
(B)
a case in which the legal rights of one or more persons who are
granted party status are adjudicated, which is conducted in such a way that all
parties have opportunity to present evidence and to cross-examine witnesses
presented by other parties, which results in a written decision, and the result of
which is appealable by a party to a higher authority.
Sec. 2.
1 V.S.A. § 312 is amended to read:
§ 312.
RIGHT TO ATTEND MEETINGS OF PUBLIC AGENCIES
(a)(1)
All meetings of a public body are declared to be open to the public at
all times, except as provided in section 313 of this title.
No resolution, rule,
regulation, appointment, or formal action shall be considered binding except as
taken or made at such open meeting, except as provided under section
313(a)(2) subdivision 313(b)(1) of this title.
A meeting may be conducted by
audio conference or other electronic means, as long as the provisions of this
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subchapter are met.
A meeting of a public body is subject to the public
accommodation requirements of 9 V.S.A. chapter 139.
A public body shall
electronically record by audio tape, all public hearings held to provide a forum
for public comment on a proposed rule, pursuant to 3 V.S.A. § 840.
The
public shall have access to copies of such tapes electronic recordings as
described in section 316 of this title.
(2)
Participation in meetings through electronic or other means.
(A)
As long as the requirements of this subchapter are met, one or
more of the members of a public body may attend a regular, special, or
emergency meeting by electronic or other means without being physically
present at a designated meeting location.
(B)
If one or more members attend a meeting by electronic or other
means, such members may fully participate in discussing the business of the
public body and voting to take an action, but any vote of the public body shall
be taken by roll call.
(C)
Each member who attends a meeting without being physically
present at a designated meeting location shall:
(i)
identify himself or herself when the meeting is convened; and
(ii)
be able to hear the conduct of the meeting and be heard
throughout the meeting.
(D)
If a quorum or more of the members of a public body attend a
meeting without being physically present at a designated meeting location, the
following additional requirements shall be met:
(i)
At least 24 hours prior to the meeting, or as soon as practicable
prior to an emergency meeting, the public body shall publicly announce the
meeting, and a municipal public body shall post notice of the meeting in or
near the municipal clerk’s office and in at least two other public places in the
municipality.
(ii)
The public announcement and posted notice of the meeting
shall designate at least one physical location where a member of the public can
attend and participate in the meeting.
At least one member of the public body,
or at least one staff or designee of the public body, shall be physically present
at each designated meeting location.
(b)(1)
Minutes shall be taken of all meetings of public bodies.
The minutes
shall cover all topics and motions that arise at the meeting and give a true
indication of the business of the meeting.
Minutes shall include at least the
following minimal information:
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(A)
All members of the public body present;
(B)
All other active participants in the meeting;
(C)
All motions, proposals, and resolutions made, offered, and
considered, and what disposition is made of same; and
(D)
The results of any votes, with a record of the individual vote of
each member if a roll call is taken.
(2)
Minutes of all public meetings shall be matters of public record,
shall be kept by the clerk or secretary of the public body, and shall be available
for inspection by any person and for purchase of copies at cost upon request
after five days from the date of any meeting.
(c)(1)
The time and place of all regular meetings subject to this section
shall be clearly designated by statute, charter, regulation, ordinance, bylaw,
resolution, or other determining authority of the public body, and this
information shall be available to any person upon request.
The time and place
of all public hearings and meetings scheduled by all Executive Branch State
agencies, departments, boards, or commissions shall be available to the public
as required under 3 V.S.A. § 2222(c).
(2)
The time, place, and purpose of a special meeting subject to this
section shall be publicly announced at least 24 hours before the meeting.
Municipal public bodies shall post notices of special meetings in or near the
municipal clerk’s office and in at least two other public places in the
municipality, at least 24 hours before the meeting.
In addition, notice shall be
given, either orally or in writing, to each member of the public body at least
24 hours before the meeting, except that a member may waive notice of a
special meeting.
(3)
Emergency meetings may be held without public announcement,
without posting of notices and without 24-hour notice to members, provided
some public notice thereof is given as soon as possible before any such
meeting.
Emergency meetings may be held only when necessary to respond to
an unforeseen occurrence or condition requiring immediate attention by the
public body.
(4)
Any adjourned meeting shall be considered a new meeting, unless
the time and place for the adjourned meeting is announced before the meeting
adjourns.
(5)
An editor, publisher or news director of any newspaper, radio station
or television station serving the area of the state in which the public body has
jurisdiction A person may request in writing that a public body notify the
editor, publisher or news director person of special meetings of the public
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body.
The request shall apply only to the calendar year in which it is made,
unless made in December, in which case it shall apply also to the following
year.
(d)(1)
The At least 48 hours prior to a regular meeting, and at least 24
hours prior to a special meeting, a meeting agenda for a regular or special
meeting shall be:
(A)
posted to a website, if one exists, that the public body maintains
or designates as the official website of the body; and
(B)
in the case of a municipal public body, posted in or near the
municipal office and in at least two other public places in the municipality.
(2)
A meeting agenda shall be made available to the news media or
concerned persons a person prior to the meeting upon specific request.
(3)(A)
Any addition to or deletion from the agenda shall be made as the
first act of business at the meeting.
(B)
Any other adjustment to the agenda may be made at any time
during the meeting.
(e)
Nothing in this section or in section 313 of this title shall be construed
as extending to the judicial branch Judicial Branch of the government
Government of Vermont or of any part of the same or to the public service
board Public Service Board; nor shall it extend to the deliberations of any
public body in connection with a quasi-judicial proceeding; nor shall anything
in this section be construed to require the making public of any proceedings,
records, or acts which are specifically made confidential by the laws of the
United States of America or of this state State.
(f)
A written decision issued by a public body in connection with a
quasi-judicial proceeding need not be adopted at an open meeting if the
decision will be a public record.
(g)
The provisions of this subchapter shall not apply to site inspections for
the purpose of assessing damage or making tax assessments or abatements,
clerical work, or work assignments of staff or other personnel.
Routine,
day-to-day administrative matters that do not require action by the public body,
may be conducted outside a duly warned meeting, provided that no money is
appropriated, expended, or encumbered.
(h)
At an open meeting the public shall be given a reasonable opportunity
to express its opinion on matters considered by the public body during the
meeting as long as order is maintained.
Public comment
shall be subject to
reasonable rules established by the chairperson.
This subsection shall not
apply to quasi-judicial proceedings.
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(i)
Nothing in this section shall be construed to prohibit the parole board
Parole Board from meeting at correctional facilities with attendance at the
meeting subject to rules regarding access and security established by the
superintendent of the facility.
Sec. 3.
1 V.S.A. § 313 is amended to read:
§ 313.
EXECUTIVE SESSIONS
(a)
No public body described in section 312 of this title may hold an
executive session from which the public is excluded, except by the affirmative
vote of two-thirds of its members present in the case of any public body of
State government or of a majority of its members present in the case of any
public body of a municipality or other political subdivision.
A motion to go
into executive session shall indicate the nature of the business of the executive
session, and no other matter may be considered in the executive session.
Such
vote shall be taken in the course of an open meeting and the result of the vote
recorded in the minutes.
No formal or binding action shall be taken in
executive session except for actions relating to the securing of real estate
options under subdivision (2) (b)(1) of this subsection section.
Minutes of an
executive session need not be taken, but if they are, shall not be made public
subject to subsection 312(b) of this title.
(b)
A public body may not hold an executive session except to consider one
or more of the following:
(1)
Contracts, labor relations agreements with employees, arbitration,
mediation, grievances, civil actions, or prosecutions by the state, where
premature
general
public
knowledge
would
clearly
place
the
state,
municipality,
other
public
body,
or
person
involved
at
a
substantial
disadvantage;
(2)(1)
The negotiating or securing of real estate purchase or lease
options;
(3)(2)
The appointment or employment or evaluation of a public officer
or employee, including discussion, interview, and evaluation of the merits of a
candidate for public office or employment, provided that a final decision to
hire or appoint a public officer or employee shall be made in an open meeting;
(4)(3)
A disciplinary or dismissal action against a public officer or
employee; but nothing in this subsection shall be construed to impair the right
of such officer or employee to a public hearing if formal charges are brought;
(5)(4)
A clear and imminent peril to the public safety;
(6)(5)
Discussion or consideration of records or documents excepted
Records exempt from the access to public records provisions of section 317
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316 of this title.
Discussion or consideration of the excepted record or
document; provided, however, that discussion of the exempt record shall not
itself permit an extension of the executive session to the general subject to
which the record or document pertains;
(7)(6)
The academic records or suspension or discipline of students;
(8)(7)
Testimony from a person in a parole proceeding conducted by the
Parole Board if public disclosure of the identity of the person could result in
physical or other harm to the person;
(9)(8)
Information relating to a pharmaceutical rebate or to supplemental
rebate agreements, which is protected from disclosure by federal law or the
terms and conditions required by the Centers for Medicare and Medicaid
Services as a condition of rebate authorization under the Medicaid program,
considered pursuant to 33 V.S.A. §§ 1998(f)(2) and 2002(c);
(9)
Municipal or school security or emergency response measures, the
disclosure of which could jeopardize public safety;
(10)
After making a specific finding that premature general public
knowledge would place the public body or a person involved at a substantial
disadvantage:
(A)
Contracts;
(B)
Labor relations agreements with employees;
(C)
Arbitration or mediation;
(D)
Grievances, other than tax grievances; or
(E)
Professional legal advice in connection with pending or imminent
civil litigation or a prosecution, to which the public body is or may be a party.
(b)(c)
Attendance in executive session shall be limited to members of the
public body, and, in the discretion of the public body, its staff, clerical
assistants and legal counsel, and persons who are subjects of the discussion or
whose information is needed.
(c)(d)
The Senate and House of Representatives, in exercising the power to
make their own rules conferred by Chapter II of the Vermont Constitution,
shall be governed by the provisions of this section in regulating the admission
of the public as provided in Chapter II, § 8 of the Constitution.
Sec. 4.
1 V.S.A. § 314 is amended to read:
§ 314.
PENALTY AND ENFORCEMENT
(a)
A person who is a member of a public body and who knowingly and
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intentionally
violates
the
provisions
of
this
subchapter, a
person
who
knowingly and intentionally violates the provisions of this subchapter on
behalf or at the behest of a public body, or a person who knowingly and
intentionally participates in the wrongful exclusion of any person or persons
from any meeting for which provision is herein made, shall be guilty of a
misdemeanor and shall be fined not more than $500.00.
(b)(1)
The attorney general Prior to instituting an action under subsection
(c) of this section, the Attorney General or any person aggrieved by a violation
of the provisions of this subchapter shall provide the public body written notice
that alleges a specific violation of this subchapter and requests a specific cure
of such violation. The public body will not be liable for attorney’s fees and
litigation costs under subsection (d) of this section if it cures in fact a violation
of this subchapter in accordance with the requirements of this subsection.
(2)
Upon receipt of the written notice of alleged violation, the public
body shall respond publicly to the alleged violation within seven business
days by:
(A)
acknowledging the violation of this subchapter and stating an
intent to cure the violation within 14 calendar days; or
(B)
stating that the public body has determined that no violation has
occurred and that no cure is necessary.
(3)
Failure of a public body to respond to a written notice of alleged
violation within seven business days shall be treated as a denial of the violation
for purposes of enforcement of the requirements of this subchapter.
(4)
Within 14 calendar days after a public body acknowledges a
violation under subdivision (2)(A) of this subsection, the public body shall
cure the violation at an open meeting by:
(A)
either ratifying, or declaring as void, any action taken at or
resulting from a meeting in violation of this subchapter; and
(B)
adopting specific measures that actually prevent future violations.
(c)
Following expiration of the seven-business-day response period of
subdivision
(b)(2)
of
this
section
and,
if
applicable,
of
the
additional
14-calendar-day cure period for public bodies acknowledging a violation, the
Attorney General or any person aggrieved by a violation of the provisions of
this subchapter may apply to the superior court bring an action in the Civil
Division of the Superior Court in the county in which the violation has taken
place for appropriate injunctive relief or for a declaratory judgment.
An action
may be brought under this section no later than one year after the meeting at
which the alleged violation occurred or to which the alleged violation relates.
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Except as to cases the court Court considers of greater importance, proceedings
before the superior court Civil Division of the Superior Court, as authorized by
this section and appeals therefrom, take precedence on the docket over all
cases and shall be assigned for hearing and trial or for argument at the earliest
practicable date and expedited in every way.
(d)
The Court shall assess against a public body found to have violated the
requirements of this subchapter reasonable attorney’s fees and other litigation
costs reasonably incurred in any case under this subchapter in which the
complainant has substantially prevailed, unless the Court finds that:
(1)(A)
the public body had a reasonable basis in fact and law for its
position; and
(B)
the public body acted in good faith.
In determining whether a
public body acted in good faith, the Court shall consider, among other factors,
whether the public body responded to a notice of an alleged violation of this
subchapter in a timely manner under subsection (b) of this section; or
(2)
the public body cured the violation in accordance with subsection (b)
of this section.
Sec. 5.
EFFECTIVE DATE
This act shall take effect on July 1, 2014.
( Committee Vote: 9-0-2)
H. 602
An act relating to municipal budget committees
Rep. Devereux of Mount Holly,
for the Committee on
Government
Operations,
recommends the bill be amended by striking all after the enacting
clause and inserting in lieu thereof the following:
Sec. 1.
17 V.S.A. § 2646 is amended to read:
§ 2646.
TOWN OFFICERS; QUALIFICATION; ELECTION
At the annual meeting, a town shall choose from among its legally qualified
voters the following town officers, who shall serve until the next annual
meeting and until successors are chosen, unless otherwise provided by law:
* * *
(8)
A collector of current taxes, if the town so orders votes;
(9)
A collector of delinquent taxes, if the town so orders votes, for a
term of one year unless a town votes that a collector of delinquent taxes shall
be elected for a term of three years.
When a town votes for a three-year term
- 717 -
for the collector of delinquent taxes, that three-year term shall remain in effect
until the town rescinds it by the majority vote of the legal voters present and
voting at an annual meeting, duly warned for that purpose;
* * *
(12)
A trustee of public funds if the town has so ordered votes;
* * *
(14)
A cemetery commissioner if the town has so ordered votes;
(15)
One or more patrol officers to patrol town highways under the
direction of the selectboard, if the town so orders votes;
(16)
One or two road commissioners who shall be elected by ballot if
the town has so ordered votes; otherwise they shall be appointed by the
selectboard
as
provided
in
section
2651
of
this
chapter.
The
road
commissioners shall be elected for a term of one year unless a town votes that
the commissioners shall be elected for a term of two or three years.
When a
town
votes
for
a
two-year
or
three-year
term
for
the
office
of
road
commissioner, that two-year or three-year term shall remain in effect until the
town rescinds it by the majority vote of the legal voters present and voting at
an annual meeting, duly warned for that purpose;
(17)
Three
water
commissioners
unless
the
town
votes
to
elect
additional
selectboard
members,
in
which
case
the
number
of
water
commissioners shall, at the discretion of the selectboard, be the same as the
number of members that comprise the selectboard.
The commissioners shall
be elected by ballot if the town has so ordered votes; otherwise they shall be
appointed by the selectboard as provided in section 2651 of this chapter;
(18)
Five members of an advisory budget committee, if the town so
votes, unless the town votes to elect additional advisory budget committee
members.
The advisory budget committee members shall be elected by ballot,
unless the town votes to have those members appointed by the selectboard.
Sec. 2.
24 V.S.A. chapter 33, subchapter 14 is added to read:
Subchapter 14.
Budget Committee
§ 1147.
ADVISORY BUDGET COMMITTEE CREATION; DUTIES
If a municipality creates an advisory budget committee as provided in
17 V.S.A. § 2646, the committee shall evaluate the municipality’s budget and
make recommendations to the selectboard for the budget based on its findings.
Sec. 3.
EFFECT OF ACT; PREVIOUS TOWN ORDERS
- 718 -
A town that has ordered the election of officers under the provisions of
17 V.S.A. § 2646 prior to the effective date of Sec. 1 of this act may continue
to elect those officers after the effective date of Sec. 1 of this act.
Sec. 4.
EFFECTIVE DATE
This act shall take effect on July 1, 2014.
( Committee Vote: 9-0-2)
H. 685
An act relating to identification and registration of moorings
Rep. Quimby of Concord,
for the Committee on
Fish, Wildlife & Water
Resources,
recommends the bill be amended by striking all after the enacting
clause and inserting in lieu thereof the following:
Sec. 1.
29 V.S.A. § 401 is amended to read:
§ 401.
POLICY
(a)
Lakes and ponds which are public waters of Vermont and the lands
lying thereunder are a public trust, and it is the policy of the State that these
waters and lands shall be managed to serve the public good, as defined by
section 405 of this title, to the extent authorized by statute.
For the purposes of
this chapter, the exercise of this management shall be limited to encroachments
subject to section 403 of this title subchapter 2 and moorings subject to
subchapter 3 of this chapter.
The management of these waters and lands shall
be exercised by the Department of Environmental Conservation in accordance
with this chapter and the rules of the Department.
(b)
For the purposes of regulation of encroachments under subchapter 2 of
this chapter, jurisdiction of the Department shall be construed as extending to
all lakes and ponds which are public waters and the lands lying thereunder,
which lie beyond the shoreline or shorelines delineated by the mean water
level of any lake or pond which is a public water of the State, as such mean
water level is determined by the Department.
For the purposes of regulation of
encroachments under subchapter 2 of this chapter, jurisdiction shall include
encroachments
of
docks
and
piers
on
the
boatable
tributaries
of
Lake
Champlain
and
Lake
Memphremagog
upstream
to
the
first
barrier
to
navigation, and encroachments of docks and piers on the Connecticut River
impoundments and boatable tributaries of such impounds upstream to the first
barrier to navigation.
No provision of this chapter shall be construed to permit
trespass on private lands without the permission of the owner.
- 719 -
(c)
For purposes of regulation of moorings regulated under subchapter 3 of
this chapter, jurisdiction of the Department shall be construed as extending to
all public waters of the State.
Sec. 2.
29 V.S.A. § 402(8) is added to read:
(8)
“Mooring” means a buoy, piling, stake, or other apparatus used to
secure, berth, or moor vessels in public water.
It does not include fixed piers
connected to the shore or accessory structures directly related thereto that are
encroachments subject to the permitting requirements of section 403 of this
title.
Sec. 3.
29 V.S.A. § 403(b) is amended to read:
(b)
A permit shall not be required for the following uses provided that
navigation or boating is not unreasonably impeded:
* * *
(6)
Moorings, as defined by subdivision 402(8) of this chapter.
Sec. 4.
29 V.S.A. § 406 is amended to read:
§ 406.
APPEALS
Appeals of any act or decision of the department Department under this
chapter subchapter shall be made in accordance with 10 V.S.A. chapter 220 of
Title 10.
Sec. 5.
29 V.S.A. § 409 is amended to read:
§ 409.
INJUNCTION
Any person aggrieved by any violation of this chapter subchapter, or the
attorney general Attorney General at the request of the department Department,
may institute any appropriate action in the superior court Superior Court of the
county in which a proposed or existing encroachment is located to prevent,
restrain, correct, or abate any violation of this chapter subchapter or of the
conditions of any permit issued under this chapter subchapter.
Sec. 6.
29 V.S.A. chapter 11, subchapter 3 is added to read:
Subchapter 3.
Moorings
§ 416.
IDENTIFICATION OF MOORINGS
(a)
A person who places a mooring on or in the waters of the State shall
paint on or attach to the mooring the owner’s name and address.
(b)
Any person may use a mooring not bearing the owner’s name and
address to secure his or her vessel.
- 720 -
§ 417.
UNAUTHORIZED USE OF MOORINGS
A person who ties or otherwise attaches a vessel to an identified mooring of
another without express permission of the mooring’s owner is subject to an
administrative penalty of not more than $75.00.
§ 418.
APPEALS
Appeals of any act or decision of the Department under this subchapter
shall be made in accordance with 10 V.S.A. chapter 220.
§ 419.
APPLICATION OF MUNICIPAL ORDINANCES
This subchapter shall not apply to a mooring subject to a validly issued
municipal ordinance.
Sec. 7.
RECODIFICATION
29 V.S.A. §§ 401–402 are recodified within chapter 11 to be subchapter 1,
which is added to read:
Subchapter 1.
General Provisions
Sec. 8.
RECODIFICATION
29 V.S.A. §§ 403–410 are recodified within chapter 11 to be subchapter 2,
which is added to read:
Subchapter 2.
Encroachments
Sec. 9.
EFFECTIVE DATE
This act shall take effect on July 1, 2014.
( Committee Vote: 9-0-0)
H. 695
An act relating to establishing a product stewardship program for primary
batteries
Rep. Yantachka of Charlotte,
for the Committee on
Natural Resources
and Energy,
recommends the bill be amended by striking all after the enacting
clause and inserting in lieu thereof the following:
Sec. 1.
10 V.S.A. chapter 168 is added to read:
CHAPTER 168.
PRODUCT STEWARDSHIP
FOR PRIMARY BATTERIES AND RECHARGEABLE BATTERIES
Subchapter 1.
Definitions
§ 7581.
DEFINITIONS
- 721 -
As used in this chapter:
(1) “Agency” means the Agency of Natural Resources.
(2)
“Brand”
means
a
name,
symbol,
word,
or
traceable
mark
that identifies a primary battery and attributes the primary battery to the owner
or licensee of the brand as the producer.
(3)
“Calendar year” means the period commencing January 1 and
ending December 31 of the same year.
(4) “Collection rate” means a percentage by weight that each producer
or primary battery stewardship organization collects by an established date.
The collection rate shall be calculated by dividing the total weight of the
primary batteries that are collected during a calendar year by the average
annual weight of primary batteries that were estimated to have been sold in the
State by participating producers during the previous three calendar years.
Estimates of primary batteries sold in the State may be based on a reasonable
pro rata calculation based on national sales.
(5) “Consumer” means any person who presents or delivers any number
of primary batteries to a collection facility that is included in an approved
primary battery stewardship plan.
(6)
“Consumer product” means any product that is regularly used or
purchased to be used for personal, family, or household purposes. “Consumer
product” shall not mean a product primarily used or purchased for industrial or
business use.
(7)
“Discarded primary battery” means a primary battery that is no
longer used for its manufactured purpose.
(8)
“Easily removable” means readily detachable by a person without
the use of tools or with the use of common household tools.
(9)
“Participate” means to appoint a primary battery stewardship
organization or rechargeable battery stewardship organization to operate on
behalf of oneself and to have that appointment accepted by the stewardship
organization.
(10)
“Primary battery” means a nonrechargeable battery weighing
two kilograms or less, including alkaline, carbon-zinc, and lithium metal
batteries.
“Primary battery” shall not mean batteries intended for industrial,
business-to-business, warranty or maintenance services, or nonpersonal use.
(11)
“Primary battery producer” or “producer” means one of the
following with regard to a primary battery that is sold, offered for sale, or
distributed in the State:
- 722 -
(A)
a person who manufactures a primary battery and who sells,
offers for sale, or distributes that primary battery in the State under the
person’s own name or brand;
(B)
if subdivision (A) of this subdivision (11) does not apply, a
person who owns or licenses a trademark or brand under which a primary
battery is sold, offered for sale, or distributed in the State, whether or not the
trademark is registered; or
(C)
if subdivisions (A) and (B) of this subdivision (11) do not apply,
a person who imports a primary battery into the State for sale or distribution.
(12) “Primary battery stewardship organization” means an organization
appointed by one or more producers to act as an agent on behalf of a producer
or producers to design, submit, implement, and administer a primary battery
stewardship plan under this chapter.
(13)
“Primary battery stewardship plan” or “plan” means a plan
submitted to the Secretary pursuant to section 7584 of this title by an
individual producer or a primary battery stewardship organization.
(14)
“Program” or “stewardship program” means the system for the
collection,
transportation,
recycling,
and
disposal
of
primary
batteries
implemented pursuant to an approved primary battery stewardship plan.
(15)(A) “Rechargeable battery” means:
(i)
one or more voltaic or galvanic cells, electrically connected to
produce electric energy and designed to be recharged and weighing less than
11 pounds; or
(ii)
a battery pack designed to be recharged that weighs less than
11 pounds and that is designed to provide less than 40 volts direct current.
(B) “Rechargeable battery” shall not mean:
(i)
a battery that is not easily removable or is not intended or
designed
to
be
removed
from
the
covered
product,
other
than
by
the manufacturer;
(ii)
a battery that contains electrolyte as a free liquid;
(iii)
a battery or battery pack that employs lead-acid technology,
unless the battery or battery pack:
(I)
is sealed;
(II)
contains no liquid electrolyte; and
- 723 -
(III)
is intended by its manufacturer to power a handheld device
or to provide uninterrupted backup electrical power protection for stationary
consumer products or stationary office equipment; or
(iv)
a
battery
intended
for
industrial,
business-to-business,
warranty or maintenance services, or nonpersonal use.
(16) “Rechargeable battery steward” means a person who:
(A)
manufactures a rechargeable battery or a rechargeable product
that is sold, offered for sale, or distributed in the State under its own
brand name;
(B)
owns
or
licenses
a trademark
or
brand
under
which
a
rechargeable battery or rechargeable product is sold, offered for sale, or
distributed in the State, whether or not the trademark is registered; or
(C)
if subdivisions (A) and (B) of this subdivision (16) do not apply,
imports a rechargeable battery or rechargeable product into the State for sale
or distribution.
(17)
“Rechargeable battery stewardship organization” means an entity
registered by the Secretary pursuant to section 7588 of this title that is either a
single
rechargeable
battery
steward
operating
on
its
own
behalf;
an
organization appointed by one or more rechargeable battery stewards to
operate a plan in which each steward is participating; or a retailer or franchisor
of retailers operating a plan on behalf of itself or its franchisees.
(18) “Rechargeable product” means a consumer product that contains or
is packaged with a rechargeable battery at the time the product is sold, offered
for sale, or distributed in the State. “Rechargeable product” shall not mean:
(A)
a product from which a rechargeable battery is not easily
removable or is not intended or designed to be removed from the product,
other than by the manufacturer; or
(B)
an implanted medical device, as that term is defined in the federal
Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(h), as amended.
(19)
“Recycling” means any process by which discarded products,
components, and by-products are transformed into new usable or marketable
materials in a manner in which the original products may lose their identity,
but does not include energy recovery or energy generation by means of
combusting discarded products, components, and by products with or without
other waste products.
- 724 -
(20) “Retailer” means a person who offers a primary battery for sale to
any consumer or business at retail in the State through any means, including
remote offerings such as sales outlets, catalogues, or an Internet website.
(21) “Secretary” means the Secretary of Natural Resources.
Subchapter 2.
Primary Battery Stewardship Program
§ 7582.
SALE OF PRIMARY BATTERIES
(a)
Sale prohibited.
Except as set forth under subsections (c) and (d) of this
section, beginning on January 1, 2016, a producer of a primary battery shall
not sell, offer for sale, or deliver to a retailer for subsequent sale a primary
battery unless the producer has complied with the requirements of subsection
(b) of this section.
(b)
Requirements for sale.
No producer shall sell, offer for sale, or
deliver to a retailer for subsequent sale a primary battery in the State unless:
(1)
the producer or the primary battery stewardship organization in
which the producer is participating is registered under an approved and
implemented primary battery stewardship plan;
(2)
the producer or primary battery stewardship organization has paid
the fee under section 7594 of this title; and
(3) the name of the producer and the producer’s brand are designated on
the
Agency
website
as
covered
by
an
approved
primary
battery
stewardship plan.
(c)
New producers.
(1)
A producer of a primary battery who, after January 1, 2016, seeks to
sell, offer for sale, or offer for promotional purposes in the State a primary
battery not previously sold in State, shall notify the Secretary prior to selling or
offering for sale or promotion a primary battery not covered by an approved
primary battery stewardship plan.
(2)
The Secretary shall list a producer who supplies notice under this
subsection as a “new producer” on the Agency’s website.
A producer that
supplies notice under this subsection shall have 90 days, not including the time
required for public comment under subsection 7586(c) of this section, to either
join an existing primary battery stewardship organization or submit a primary
battery stewardship plan for approval to the State.
(d)
Exemption.
A producer who annually sells, offers for sale, distributes,
or imports in or into the State primary batteries with a total retail value of less
than $2,000.00 shall be exempt from the requirements of this chapter.
- 725 -
§ 7583.
PRIMARY
BATTERY
STEWARDSHIP
ORGANIZATION;
REQUIREMENTS; REGISTRATION
(a)
Participation in a primary battery stewardship organization.
A producer
of primary batteries may meet the requirements of this chapter by participating
in a primary battery stewardship organization that undertakes the producer’s
responsibilities under sections 7582, 7584, and 7585 of this title.
(b)
Qualifications for a primary battery stewardship organization.
To
qualify as a primary battery stewardship organization under this chapter, an
organization shall:
(1)
commit to assume the responsibilities, obligations, and liabilities of
all producers participating in the primary battery stewardship organization;
(2)
not create unreasonable barriers for participation by producers in the
primary battery stewardship organization; and
(3)
maintain a public website that lists all producers and producers’
brands covered by the primary battery stewardship organization’s approved
collection plan.
(c)
Registration requirements.
(1)
Beginning on March 1, 2015 and annually thereafter, a primary
battery stewardship
organization
shall
file
a
registration
form
with
the
Secretary.
The Secretary shall provide the registration form to a primary
battery stewardship
organization.
The
registration
form
shall
require
submission of the following information:
(A)
a list of the producers participating in the primary battery
stewardship organization;
(B)
the
name,
address,
and
contact
information
of
a
person
responsible for ensuring a producer’s compliance with this chapter;
(C)
a
description
of
how
the primary
battery stewardship
organization proposes to meet the requirements of subsection (a) of this
section, including any reasonable requirements for participation in the primary
battery stewardship organization; and
(D)
the name, address, and contact information of a person for a
nonmember manufacturer to contact on how to participate in the primary
battery stewardship organization to satisfy the requirements of this chapter.
(2)
A renewal of a registration without changes may be accomplished
through notifying the Secretary on a form provided by the Secretary.
- 726 -
§ 7584.
PRIMARY BATTERY STEWARDSHIP PLAN
(a)
Primary battery stewardship plan required.
On or before June 1, 2015,
each
producer
selling,
offering
for
sale,
distributing,
or
offering
for
promotional purposes a primary battery in the State shall individually or as part
of a primary battery stewardship organization submit a primary battery
stewardship plan to the Secretary for review.
(b)
Primary battery stewardship plan; minimum requirements.
Each
primary battery stewardship plan shall include, at a minimum, all of the
following elements:
(1)
List of producers and brands.
Each primary battery stewardship plan
shall list:
(A)
all participating producers and contact information for each of
the participating producers; and
(B)
the brands of primary batteries covered by the plan.
(2)
Free collection.
Each primary battery stewardship plan shall provide
for the collection of primary batteries from consumers at no cost to consumers.
A producer shall not refuse the collection of a primary battery based on the
brand or producer of the primary battery.
(3)
Collection;
convenience.
Each
primary
battery
stewardship
plan shall:
(A)
Allow all retailers who meet requirements specified in the plan,
all municipalities, and all certified solid waste management facilities to opt to
be a collection facility.
(B)
Provide, at a minimum, no fewer than two collection facilities in
each county in the State that provide for collection throughout the year.
(C)
Provide for the acceptance from a consumer of up to 100
batteries per visit.
A collection facility may agree to accept more than 100
batteries per visit from a consumer.
(4)
Method of disposition.
Each primary battery stewardship plan shall
include a description of the method that will be used to responsibly manage
discarded primary batteries to ensure that the components of the discarded
primary batteries, to the extent economically and technically feasible, are
recycled.
(5)
Roles and responsibilities.
A primary battery stewardship plan shall
list all key participants in the primary battery collection chain, including:
- 727 -
(A)
the number and name of the collection facilities accepting
primary batteries under the plan, including the address and contact information
for each facility; and
(B)
the name and contact information of a transporter or contractor
collecting primary batteries from collection facilities.
(C)
the name, address, and contact information of the recycling
facilities that process the collected primary batteries.
(6)
Education and outreach.
A primary battery stewardship plan shall
include an education and outreach program.
The education and outreach
program may include mass media advertising in radio or television broadcasts
or newspaper publications of general circulation in the State, retail displays,
articles
in
trade
and
other
journals
and
publications,
and
other
public
educational efforts.
The education and outreach program shall describe the
outreach procedures that will be used to provide notice of the program to
businesses,
municipalities,
certified
solid
waste
management
facilities,
retailers, wholesalers, and haulers.
At a minimum, the education and outreach
program shall notify the public of the following:
(A)
that
there
is
a
free
collection
program
for
all
primary
batteries; and
(B)
the
location
of
collection
points
and
how
to
access
the
collection program.
(7)
Reimbursement.
A primary battery stewardship plan shall include
a reimbursement
procedure
that
is
consistent
with
the
requirements
of
subchapter 4 of this chapter.
(8)
Performance goal; collection rate.
A primary battery stewardship
plan shall include a collection rate performance goal for the primary batteries
subject to the plan.
(c)
Implementation.
A producer or
a primary
battery stewardship
organization shall include provisions in the plan for the implementation of the
program in conjunction with those retailers, municipalities, and certified solid
waste management facilities acting as collection facilities under a program.
No
transportation
or
recycling
cost
shall
be
imposed
on
retailers,
municipalities,
or
certified
solid
waste
management
facilities
acting
as
collection facilities under a program.
A producer or a primary battery
stewardship organization shall provide retailers, municipalities, and certified
solid waste management facilities acting as collection facilities products or
equipment for setting up a collection point and for providing for the pickup of
- 728 -
collected primary batteries, including arranging for the management of those
primary batteries.
§ 7585.
ANNUAL REPORT; PLAN AUDIT
(a)
Annual report.
On or before March 1, 2017, and annually thereafter, a
producer or a primary battery stewardship organization shall submit a report to
the Secretary that contains the following:
(1)
the weight of primary batteries collected by the producer or the
primary battery stewardship organization in the prior calendar year;
(2)
the collection rate achieved in the prior calendar year under the
primary battery stewardship plan;
(3)
the locations for all collection points set up by the primary battery
producers covered by the primary battery stewardship plan and contact
information for each location;
(4)
examples and description of educational materials used to increase
collection;
(5)
the manner in which the collected primary batteries were managed;
(6)
any material change to the primary battery stewardship plan
approved by the Secretary pursuant to section 7586 of this title; and
(7)
the cost of implementation of the primary battery stewardship plan,
including the costs of collection, recycling, education, and outreach.
(b)
Plan audit.
After five years of implementation of an approved primary
battery stewardship plan, a primary battery producer or primary battery
stewardship organization shall hire an independent third party to conduct a
one-time audit of the primary battery stewardship plan and plan operation.
The
auditor shall examine the effectiveness of the primary battery stewardship plan
in collecting and recycling primary batteries.
The independent auditor shall
examine the cost-effectiveness of the plan and compare it to that of collection
plans or programs for primary batteries in other jurisdictions.
The independent
auditor shall submit the results of the audit to the Secretary as part of the
annual report required under subsection (a) of this section.
§ 7586.
AGENCY RESPONSIBILITIES; APPROVAL OF PLANS
(a)
Approval of plan.
Within 90 days after receipt of a proposed primary
battery stewardship plan, not including the time required for public comment
under subsection (c) of this section, the Secretary shall determine whether the
plan complies with the requirements of section 7584 of this title.
If the
Secretary determines that a plan complies with the requirements of section
7584 of this title, the Secretary shall notify the applicant of the plan approval in
- 729 -
writing.
If the Secretary rejects a primary battery stewardship plan, the
Secretary shall notify the applicant in writing of the reasons for rejecting the
plan.
An applicant whose plan is rejected by the Secretary shall submit a
revised plan to the Secretary within 45 days of receiving notice of rejection.
A primary battery stewardship plan that is not approved or rejected by the
Secretary within 90 days, not including the time required for public comment
under subsection (c) of this section, of submission by a producer shall be
deemed approved.
(b)
Plan amendment; changes.
Any changes to a proposed primary battery
stewardship plan shall be approved by the Secretary in writing.
The Secretary,
in his or her discretion or at the request of a producer, may require a producer
or a primary battery stewardship organization to amend an approved plan.
(c)
Public notice.
The Secretary shall post all proposed primary battery
stewardship
plans
and
all
proposed
amendments
to
a
primary
battery
stewardship plan on the Agency’s website for 30 days from the date the
application for a plan or a plan amendment is deemed complete by the
Secretary, subject to the confidentiality provisions of section 7594 of this title.
(d)
Public input.
The Secretary shall establish a process under which a
primary battery stewardship plan, prior to plan approval or amendment, is
available for public review and comment.
(e)
Registrations.
The Secretary shall accept, review, and approve or deny
primary battery stewardship organization registrations submitted under section
7583 of this title.
(f)
Agency website.
The Secretary shall maintain a website that includes a
copy
of all approved
primary battery stewardship plans, the names of
producers with approved plans, participation in approved plans, or other
compliance with this chapter.
The website shall list all of an approved primary
battery producer’s brands covered by a primary battery stewardship plan filed
with the Secretary.
The Secretary shall update information on the website
within 10 days of receipt of notice of any change to the listed information.
The
website shall list all known primary battery producers exempt from the
requirements of this chapter under subsection 7582(d) of this title.
(g)
Term of primary battery stewardship plan.
A primary battery
stewardship plan approved by the Secretary under this section shall have a
term not to exceed five years, provided that the primary battery producer or
primary battery stewardship organization remains in compliance with the
requirements of this chapter and the terms of the approved plan.
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§ 7587.
RETAILER OBLIGATIONS
(a)
Sale prohibited.
Except as set forth in subsection (b) of this section, no
retailer shall sell or offer for sale a primary battery on or after January 1, 2016
unless the producer of the primary battery is implementing an approved
primary battery
stewardship
plan,
is
a
member
of
a
primary
battery
stewardship organization
implementing
an
approved
primary
battery
stewardship plan, or is exempt from participation in an approved plan, as
determined by review of the producers listed on the Agency website required
in subsection 7586(f) of this title.
(b)
Inventory exception; expiration or revocation of producer registration.
A retailer shall not be responsible for an unlawful sale of a primary battery
under this subsection if:
(1)
the retailer purchased the primary battery prior to January 1, 2016
and sells the primary battery on or before January 1, 2017; or
(2)
the producer’s primary battery stewardship plan expired or was
revoked, and the retailer took possession of the in-store inventory of primary
batteries prior to the expiration or revocation of the producer’s primary battery
stewardship plan.
(c)
Educational material.
A producer or primary battery stewardship
organization supplying primary batteries to a retailer shall provide the retailer
with educational materials describing collection opportunities for primary
batteries.
The retailer shall make the educational materials available to
consumers.
Subchapter 3.
Registration of Rechargeable Battery
Stewardship Organization
§ 7588.
REGISTRATION OF RECHARGEABLE BATTERY
STEWARDSHIP ORGANIZATION
(a)
A rechargeable battery steward or rechargeable battery stewardship
organization shall register with the Secretary in order to seek reimbursement
under subchapter 4 of this chapter.
(b)
The
Secretary
shall
register
a
rechargeable
battery
steward
or
rechargeable battery stewardship organization upon:
(1)
submission of a registration form, provided by the Secretary, that
includes:
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(A)
the name of a rechargeable battery steward implementing an
individual program or a list of the producers participating in a rechargeable
battery stewardship organization; and
(B)
the
name,
address,
and
contact
information
of
a
person
responsible for implementing the rechargeable battery stewardship program;
(2)
a determination by the Secretary that the rechargeable battery
steward
or
rechargeable
battery
stewardship
organization
offers
to
municipalities, certified solid waste management facilities, and retailers a
year-round free collection and recycling program.
Subchapter 4.
Reimbursement
§ 7589.
REIMBURSEMENT; AUTHORIZATION
(a)
Reimbursement of primary battery producers.
(1)
A producer or a primary battery stewardship organization operating
under an approved primary battery stewardship plan that collects primary
batteries or rechargeable batteries that are not listed under its approved plan
shall be entitled to reimbursement from the following entities of direct costs
per unit of weight incurred in collecting the batteries:
(A)
the producer of the collected primary battery or the primary
battery stewardship organization representing the producer of the collected
primary battery; or
(B)
the rechargeable battery steward responsible for the collected
rechargeable batteries, or where the rechargeable battery steward responsible
for the collected rechargeable batteries is participating in a rechargeable
battery stewardship organization, the stewardship organization.
(2)
Reimbursement may be requested by a collecting primary battery
producer or primary battery stewardship organization only after that producer
has achieved the collection rate performance goal approved by the Secretary
under section 7584 of this title.
(b)
Reimbursement of rechargeable battery stewardship organization.
A
registered rechargeable battery steward or rechargeable battery stewardship
organization shall be entitled to reimbursement from the producer of the
collected primary battery or the primary battery stewardship organization
representing the producer of the collected primary battery.
(c)
Direct costs.
Under this subchapter, reimbursement shall be allowed
only for those direct costs incurred in collecting the batteries subject to the
reimbursement request.
Direct costs include costs of collection, transport,
recycling, and other methods of disposition identified in a primary battery
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stewardship plan approved pursuant to section 7586 of this title, plus an
additional negotiated amount not to exceed 10 percent of the direct costs.
§ 7590.
REIMBURSEMENT PROCESS
(a)
Reimbursement request.
(1)
A
primary
battery
producer,
primary
battery
stewardship
organization, or rechargeable battery stewardship organization that incurs
reimbursable direct costs under section 7589 of this title shall submit a request
to the producer of the collected primary battery or the primary battery
stewardship
organization
in
which
the
producer
is
participating
or
the
rechargeable battery stewardship organization responsible for the collected
rechargeable battery.
(2)
A
producer
or
primary
battery
stewardship
organization
or
rechargeable battery stewardship organization that receives a request for
reimbursement may, prior to payment and within 30 days of receipt of the
request
for
reimbursement,
request
an
independent
audit
of
submitted
reimbursement costs.
(3)
The independent auditor shall be responsible for verifying the
reasonableness of the reimbursement request, including the costs sought for
reimbursement, the amount of reimbursement, and the direct costs assessed by
each of the two programs.
(4)
If the independent audit confirms the
reasonableness of the
reimbursement
request,
the
producer,
primary
battery
stewardship
organization, or rechargeable battery stewardship organization requesting the
audit shall pay the cost of the audit and the amount of the reimbursement
calculated by the independent auditor.
If the independent audit indicates the
reimbursement request was not reasonable, the producer or primary battery
stewardship organization that initiated the reimbursement request shall pay the
cost of the audit and the amount of the reimbursement calculated by the
independent auditor.
(b)
Role of Agency.
The Agency shall not be required to provide
assistance or otherwise participate in a reimbursement request, audit, or other
action under this section, unless subject to subpoena before a court of
jurisdiction.
Subchapter 5.
Private Right of Action
§ 7591.
PRIVATE RIGHT OF ACTION
(a)
Action against producer with no primary battery stewardship plan.
A
producer or a primary battery stewardship organization implementing an
approved
primary
battery
stewardship
plan
in
compliance
with
the
- 733 -
requirements of this chapter may bring a civil action against another producer
or primary battery stewardship organization for damages when:
(1)
the plaintiff producer or primary battery stewardship organization
incurs
more
than
$1,000.00
in
actual
direct
costs
collecting,
handling,
recycling, or properly disposing of primary batteries sold or offered for sale in
the State by that other producer;
(2)
the producer from whom damages are sought:
(A)
can be identified as the producer of the collected batteries from a
brand or marking on the discarded battery or from other information available
to the plaintiff producer or primary battery stewardship organization; and
(B)
does not operate or participate in an approved primary battery
stewardship organization in the State or is not otherwise in compliance with
the requirements of this chapter.
(b)
Action against producer with an approved primary battery stewardship
plan.
A producer or primary battery stewardship organization in compliance
with the requirements of this chapter may bring a civil action for damages
against another producer or primary battery stewardship organization in the
State that is in compliance with the requirements of this chapter provided that
the conditions of subsection (e) of this section have been met.
(c)
Action against rechargeable battery stewardship organization.
A
producer
or
primary
battery
stewardship
organization
implementing
an
approved
primary
battery
stewardship
plan
in
compliance
with
the
requirements of this chapter may bring a civil action for damages against a
rechargeable battery stewardship organization registered by the Secretary
provided that the conditions of subsection (e) of this section have been met.
(d)
Action
by
rechargeable
battery
stewardship
organization.
A
rechargeable battery steward may bring a civil action for damages against a
primary battery producer or primary battery stewardship organization that is
implementing an approved primary battery stewardship plan in the State
provided that the conditions of subsection (e) of this section have been met.
(e)
Condition precedent to cause of action.
Except as authorized under
subsection (a) of this section, a cause of action under this section shall be
allowed only if:
(1)
a plaintiff producer, primary battery stewardship organization or
rechargeable battery stewardship organization submitted a reimbursement
request to another producer, primary battery stewardship organization, or
rechargeable battery stewardship organization under subchapter 4 of this
chapter; and
- 734 -
(2)
the plaintiff producer, primary battery stewardship organization or
rechargeable battery stewardship organization does not receive reimbursement
within:
(A)
90 days of the reimbursement request, if no independent audit is
requested under subchapter 4 of this chapter; or
(B)
60 days after completion of an audit if an independent audit is
requested under subchapter 4 of this chapter, and the audit confirms the
validity of the reimbursement request.
(f)
Action against individual producer or steward.
(1)
A civil action under this section may be brought against an
individual primary battery producer or an individual rechargeable battery
steward only if the primary battery producer is implementing its own primary
battery stewardship plan, the primary battery producer has failed to register to
participate in a primary battery stewardship plan, or the rechargeable battery
steward is implementing its own registered rechargeable battery stewardship
organization.
(2)
A primary battery producer participating in an approved primary
battery stewardship plan covering multiple producers or a rechargeable battery
steward
participating
in
a
rechargeable
battery stewardship
organization
representing
multiple
stewards
shall
not
be
sued
individually
for
reimbursement.
(3)
An action against a primary battery producer participating in a
primary battery stewardship plan covering multiple producers or an action
against a rechargeable battery steward participating in a rechargeable battery
stewardship organization shall be brought against the stewardship organization
implementing the plan.
(g)
Role of Agency.
The Agency shall not be a party to or be required to
provide assistance or otherwise participate in a civil action authorized under
this section solely due to its regulatory requirements under this chapter, unless
subject to subpoena before a court of jurisdiction.
(h)
Damages; definitions.
As used in this section, “damages” means the
actual,
direct
costs
a
plaintiff
producer,
primary
battery
stewardship
organization,
or
rechargeable
battery
stewardship
organization
incurs
in
collecting, handling, recycling, or properly disposing of primary batteries
reasonably identified as having originated from another primary battery
producer, primary battery stewardship organization, or rechargeable battery
stewardship organization.
- 735 -
Subchapter 6.
General Provisions
§ 7592.
CONFIDENTIALITY OF SUBMITTED DATA
(a)
Confidentiality.
Reports and data submitted under this chapter shall be
available for public inspection and copying, provided that:
(1)
Information protected under the Uniform Trade Secrets Act, as
codified under 9 V.S.A. chapter 143, or under the trade secret exemption under
1 V.S.A. § 317(c)(9) shall be exempt from public inspection and copying under
the Public Records Act.
(2)
The
Secretary
may
publish
information
confidential
under
subdivision (1) of this subsection in a summary or aggregated form that does
not directly or indirectly identify individual producers, battery stewards,
distributors, or retailers.
(b)
Omission of trade secret information.
The Secretary may require, as a
part of a report submitted under this chapter, that the producer, primary battery
stewardship organization, rechargeable battery steward, or rechargeable battery
stewardship organization submit a report that does not contain trade secret
information and is available for public inspection and review.
(c)
Total weight of batteries.
The total weight of batteries collected under
an approved primary battery stewardship plan is not confidential business
information under the Uniform Trade Secrets Act, as codified under 9 V.S.A.
chapter 143, and shall be subject to inspection and review under the Public
Records Act, 1 V.S.A chapter 5, subchapter 3.
§ 7593.
ANTITRUST; CONDUCT AUTHORIZED
(a)
Activity authorized.
A producer, group of producers, or primary battery
stewardship
organization
implementing
or
participating
in
an
approved
primary
battery
stewardship
plan
under
this
chapter
for
the
collection,
transport, processing, and end-of-life management of primary batteries is
individually or jointly immune from liability for the conduct under State laws
relating to antitrust, restraint of trade, unfair trade practices, and other
regulation of trade or commerce under 9 V.S.A. chapter 63, subchapter 1, to
the extent that the conduct is reasonably necessary to plan, implement, and
comply
with
the
producer’s,
group
of
producers’,
or
primary
battery
stewardship organization’s chosen system for managing discarded primary
batteries.
This subsection shall also apply to conduct of a retailer or
wholesaler
participating
in
a
producer
or
primary
battery
stewardship
organization’s approved primary battery stewardship plan when the conduct is
necessary to plan and implement the producer’s or primary battery stewardship
organization’s organized collection or recycling system for discarded batteries
- 736 -
(b)
Limitations on anti-trust activity.
Subsection (a) of this section shall
not apply to an agreement among producers, groups of producers, retailers,
wholesalers, or primary battery stewardship organizations affecting the price of
primary batteries or any agreement restricting the geographic area in which, or
customers to whom, primary batteries shall be sold.
§ 7594.
ADMINISTRATIVE FEE
(a)
Fees assessed.
A primary battery producer or primary battery
stewardship organization shall pay a fee of $15,000.00 annually for operation
under a primary battery stewardship plan approved by the Secretary under
section 7586 of this title.
(b)
Disposition of fees.
The fees collected under subsection (a) of this
section
shall
be
deposited
in
the
Environmental
Permit
Fund
under
§ 7595.
RULEMAKING; PROCEDURE
The Secretary may adopt rules or procedures to implement the requirements
of this chapter.
Sec. 2.
AGENCY OF NATURAL RESOURCES REPORT ON
IMPLEMENTATION OF PRIMARY BATTERY STEWARDSHIP
On or before January 15, 2019, the Agency of Natural Resources shall
submit to the House and Senate Committees on Natural Resources and Energy
a report on the progress of the primary battery stewardship program under
10 V.S.A. chapter 168.
The report shall include:
(1)
the amount, by weight, of primary batteries and rechargeable
batteries collected under approved primary battery stewardship plans;
(2)
the percentage of collected batteries not covered by or attributable to
a
primary
battery
producer
implementing
an
approved
primary
battery
stewardship plan or participating in an approved primary battery stewardship
organization; and
(3)
recommendation for any amendments to the requirements of
10 V.S.A. chapter 168, including whether additional manufacturers of batteries
or battery containing products should be required to implement primary battery
stewardship plans.
Sec. 3.
10 V.S.A. § 8003(a) is amended to read:
(a)
The Secretary may take action under this chapter to enforce the
following statutes and rules, permits, assurances, or orders implementing the
following statutes:
- 737 -
* * *
(22)
10
V.S.A.
chapter
164A,
collection
and
disposal
of
mercury-containing lamps; and
(23)
24 V.S.A. § 2202a, relating to a municipality’s adoption and
implementation of a solid waste implementation plan that is consistent with the
State Solid Waste Plan; and
(24)
10 V.S.A. chapter 168, relating to the collection and disposal of
primary batteries.
Sec. 4.
10 V.S.A. § 8503(a) is amended to read:
(a)
This chapter shall govern all appeals of an act or decision of the
Secretary, excluding enforcement actions under chapters 201 and 211 of this
title and rulemaking, under the following authorities and under the rules
adopted under those authorities:
(1)
The following provisions of this title:
* * *
(Q)
chapter 164A (collection and disposal of mercury-containing
lamps).
(R)
chapter 32 (flood hazard areas).
(S)
chapter 168 (collection and disposal of primary batteries).
(2)
29 V.S.A. chapter 11 (management of lakes and ponds).
(3)
24 V.S.A. chapter 61, subchapter 10 (relating to salvage yards).
Sec. 5.
EFFECTIVE DATE
This act shall take effect on passage.
( Committee Vote: 11-0-0)
Favorable
H. 718
An act relating to approval of amendments to the charter of the Village of
Derby Line
Rep. Lewis of Berlin
, for the Committee on
Government Operations,
recommends the bill ought to pass.
( Committee Vote: 9-0-2)
- 738 -
H. 864
An act relating to capital construction and State bonding budget adjustment
(Rep.
Emmons
of
Springfield
will
speak
for
the
Committee
on
Corrections and Institutions.)
Rep. Winters of Williamstown
, for the Committee on
Appropriations,
recommends the bill ought to pass.
( Committee Vote: 11-0-0)
Senate Proposal of Amendment
H. 583
An act relating to the charge of the Vermont Child Poverty Council
The Senate proposes to the House to amend the bill by striking all after the
enacting clause and inserting in lieu thereof the following:
Sec. 1.
2007 Acts and Resolves No. 68, Sec. 1 is amended to read:
Sec. 1.
VERMONT CHILD POVERTY COUNCIL
* * *
(b)(1) The council Council shall consist of the following members or their
designees:
(A)
the president pro tempore of the senate President Pro Tempore of
the Senate;
(B)
the speaker of the house of representatives Speaker of the House
of Representatives;
(C)
the chair of the senate committee on health and welfare Chair of
the Senate Committee on Health and Welfare;
(D)
the chair of the house committee on human services Chair of the
House Committee on Human Services;
(E)
the chair of the senate committee on education Chair of the
Senate Committee on Education;
(F)
the chair of the house committee on education Chair of the House
Committee on Education;
(G)
the commissioners of the departments for children and families;
of health; of education; and of labor Commissioners for Children and Families;
of Health; and of Labor;
and the Secretaries of Human Services and of
Education; and
- 739 -
(H)
one representative each from Voices for Vermont’s Children, the
Vermont low income advocacy council Low Income Advocacy Council,
Vermont
Legal
Aid,
and
the
Vermont
superintendents’
association
Superintendents’ Association.
* * *
(3) The council Council shall meet up to six times while the general
assembly General Assembly is not in session to perform its functions under
this section.
In addition, during the 2007 legislative interim, the council shall
hold 14 public hearings as required under subsection (d) of this section.
The
Council may meet an unlimited number of times during the legislative session,
but legislative Council
members
shall
not
receive
compensation
and
reimbursement for expenses pursuant to subsection (e) of this section for
participation in meetings during the legislative session.
(e) Funds from private and public sources may be accepted and utilized by
the council Council to develop and implement the plan and provisions of this
section. Legislative For participation in meetings during the legislative
interim, legislative members of the committee Council shall be entitled to
compensation and reimbursement for expenses under section 406 of Title 2
2 V.S.A. § 406. All other members not receiving compensation for service on
the committee from another source are entitled to compensation under section
1010 of Title 32. Nonlegislative members who are not otherwise compensated
and reimbursed for their participation on the Council shall be entitled to
receive compensation and reimbursement of expenses under 32 V.S.A. § 1010.
* * *
Sec. 2.
EFFECTIVE DATE
This act shall take effect on passage.
( No House Amendments )
Information Notice
Deadline for Introducing Bills
Pursuant to Rule 40(c) during the second year of the biennium, except with
the prior consent of the Committee on Rules, no committee, except the
Committees on Appropriations, Ways and Means or Government Operations,
may introduce a bill drafted in standard form after the last day of March
(March 31, 2014).
The Committees on Appropriations and Ways and Means
bill may be drafted in standard form at any time, and Government Operations
bills pertaining to city or town charters, may be drafted in standard form at any
time.
- 740 -
If you are planning on a resolution for presentation at your Town Meeting,
please see Michael Chernick with your information by February 14th
or sooner, if possible.
This will allow sufficient time for processing
and passage by both bodies.
Thank you.