Rule 4 - Review of Environmental Enforcement Orders(a)Applicability of Rules.(1) This rule applies to review of environmental enforcement orders in the Environmental Court under 10 V.S.A. §§ 8001-8013 and 24 V.S.A. § 2297b and to appeals from the Environmental Court to the Supreme Court in those proceedings. (2) The Vermont Rules of Civil Procedure, as modified by Rules 2(b)-(e), the 2010 Vermont Rules for Electronic Filing, and the Vermont Rules of Appellate Procedure apply to all proceedings under this rule except as otherwise provided in paragraph (3) of this subdivision and except where another procedure is expressly provided by subdivisions (b)-(e) of this rule. (3) The following provisions of the Vermont Rules of Civil Procedure shall not apply to proceedings under this rule: Rules 3 (Commencement of Action), 4 (Process), 4.1 (Attachment), 4.2 (Trustee Process), 7(a) and (c) (Pleadings Allowed), 8(a)-(f) (General Rules of Pleading), 9 (Pleading Special Matters), 10 (Form of Pleadings), 12 (Defenses and Objections), 13 (Counterclaim and Cross-Claim), 14 (Third-Party Practice), 18 (Joinder of Claims and Remedies), 22 (Interpleader), 23 (Class Actions), 23.1 (Derivative Actions), 24(a)(2) (Nonstatutory Intervention as of Right), 24(b)(2) (Nonstatutory Intervention by Permission), 38-39 (Jury Trials), 40(b) (Progress Calendar), 47--49 (Jurors and Juries), 51 (Argument of Counsel; Instructions to Jury), 53 (Masters), 56 (Summary Judgment), 57 (Declaratory Judgments), 64 (Replevin), 68 (Offer of Judgment), 72 (Appeals from Probate Courts), 74 (Appeals from Decisions of Governmental Agencies), 75 (Review of Governmental Action), the last sentence of Rule 77(d) (Lack of Notice of Entry), 80.1 (Foreclosure of Mortgages and Judgment Liens), 80.2 (Naturalization of Aliens), 80.4 (Habeas Corpus), 80.5 (District Court Procedures for Civil License Suspensions and Penalties for DWI), 80.6 (Judicial Bureau Procedures), 80.7 (Procedures for Immobilzation or Forfeiture Hearings Pursuant to 23 V.S.A. § 1213c ), and 80.8 (Transfer from District to Superior Court). (b)Assurances of Discontinuance. An assurance of discontinuance filed pursuant to 10 V.S.A. § 8007(c) shall be deemed a pleading by agreement pursuant to Rule 8(g) of the Vermont Rules of Civil Procedure. Assurances shall be simultaneously filed with the court and the Attorney General. The court may sign the assurance with or without a hearing. If the assurance is signed by the court, the assurance shall become a judicial order and the court shall notify the Secretary, the respondent and the Attorney General. Notwithstanding Rule 60 of the Vermont Rules of Civil Procedure, within 10 days of the date that an assurance is signed by the court, the Attorney General may move the court to vacate the order on the grounds that the assurance is insufficient to carry out the purposes of 10 V.S.A., Chapter 201. After hearing, upon finding that the assurance is insufficient to carry out the purposes of Chapter 201, the court shall vacate the order. (c)Emergency Orders.(1)Procedure for Issuance. Upon presentation of an emergency administrative order to the court pursuant to 10 V.S.A. § 8009(b), if the court finds that the Secretary has made a sufficient showing that (A) a violation presents an immediate threat of substantial harm to the environment or an immediate threat to the public health; or (B) an activity will or is likely to result in a violation which presents an immediate threat of substantial harm to the environment or an immediate threat to the public health; or (C) an activity requiring a permit has been commenced and is continuing without a permit, an emergency judicial order may be issued pursuant to 10 V.S.A. §§ 8008 and 8009. Rule 65(a) of the Vermont Rules of Civil Procedure shall provide the procedure governing issuance of these orders, except that: (i) an affidavit but no complaint is required; (ii) the affidavit must establish and the court must find that all reasonable efforts have been made to notify the respondent of the presentation of the order to the court, and, if so, the court may allow the presentation to be made ex parte; (iii) any order, including an order issued ex parte, may, if the court so orders, continue in effect until further order of the court; and (iv) the order need only state the grounds upon which it has been granted, that the respondent has the right to a prompt hearing on the merits of the order, that the hearing must be requested by motion filed within five business days of receipt of the order, that the order will remain in effect until further order of the court or a date provided, and the address or addresses where the motion must be filed. At any hearing on an application for an emergency order, the court may permit either party to present evidence. Any evidence so received that would be admissible upon the hearing on the merits becomes part of the record and need not be repeated upon the hearing on the merits.(2)Effect; Service. An emergency judicial order shall become effective on actual notice to the respondent. The Secretary shall cause the order to be served upon the respondent.(3)Hearings on Modification or Dissolution; Stay. If a motion requesting a hearing on the merits of the order is filed with the court and the Secretary by the respondent within five business days of the receipt of the order, the court shall schedule a prompt hearing, which shall take precedence over all other hearings and shall be held within five business days of filing of the motion. The court may affirm, modify or dissolve the order. The filing of a motion does not operate as a stay of the order, but the court may, upon motion, stay or modify the order upon such terms and conditions as it deems appropriate. Subdivision (d) of this rule shall govern the hearing and any resulting appeal, except that paragraph (2) of that subdivision is inapplicable and a pretrial conference will be held only in the discretion of the court. The court's ruling on a motion filed under this paragraph shall be deemed a final judgment.(d)Procedure for Review of Administrative Orders.(1)Generally. This subdivision governs request for review of any order issued by the Secretary pursuant to 10 V.S.A. § 8008, except as otherwise provided for emergency orders issued pursuant to 10 V.S.A. § 8009 and subdivision (c) of this rule. (2)Notice of Request; Stay. Review of an order of the Secretary shall be taken by filing a notice of the request with the clerk of the Environmental Court and with the Secretary within 14 days of receipt of the order or decision. The notice operates as a stay of an order issued, and payment of any penalty imposed, under 10 V.S.A. § 8008 pending the hearing. The court also may hear and determine a motion for an emergency order under subdivision (c) of this rule with regard to the alleged violation that is the subject of the proceeding under this subdivision.(3)Intervention. Upon timely motion under Rule 24 of the Vermont Rules of Civil Procedure, the court may grant party status to an aggrieved person as provided in 10 V.S.A. § 8012(d).(4)Scheduling; Discovery; Pretrial Proceedings.(A) As soon as the Secretary receives proof that an administrative order has been served upon a respondent, the Secretary shall file the order and proof of service with the court.(B)(i) Within 7 days of the filing of a notice of request for hearing, the Secretary shall file a pretrial memorandum which shall include a list of witnesses and a summary of any evidence which the Secretary plans to present in support of the administrative order.(ii) Within 14 days of the filing of the Secretary's memorandum, the respondent shall file a pretrial memorandum which shall state respondent's agreement or disagreement with each element of the "statement of facts" in the administrative order; shall include a list of witnesses and a summary of any evidence which respondent plans to present to contest such facts; shall state with particularity whether respondent accepts or contests each element of the "order" section of the administrative order; if a penalty was imposed by the order, shall include a summary of any evidence respondent plans to present regarding mitigating or other factors affecting the penalty calculation; and shall include a preliminary statement of the legal and jurisdictional issues which respondent plans to raise in the proceeding.(C) The court shall promptly thereafter convene a pretrial conference, and shall thereupon issue appropriate orders, including orders for the disposition of legal issues prior to the hearing, orders for discovery necessary to a full and fair determination of the proceeding, and other appropriate orders consistent with 10 V.S.A. § 8012, as provided in Rule 2(d).(5)Trial De Novo; Judgment. Review shall be de novo, but, if a violation is found, the court's review of the remedy imposed shall be subject to 10 V.S.A. § 8012(b). The final judgment in a ruling under this subdivision or paragraph (3) of subdivision (c) may, as appropriate under each specific subsection of 10 V.S.A. § 8012(b), affirm, reverse, modify, or dissolve the decision of the Secretary or may vacate and remand the case for further proceedings consistent with the order of the court. In addition to the requirements of Rule 52 of the Vermont Rules of Civil Procedure, the judgment shall contain the statements required by 10 V.S.A. § 8012(c)(4) and (5).(6)Appeal to Supreme Court; Stay Pending Appeal.(A) A final judgment under this rule shall be appealable as of right to the Supreme Court pursuant to 10 V.S.A. § 8013(c). The notice of appeal shall be filed within 14 days of the date of receipt of the judgment appealed from in accordance with 2010 Vermont Rules for Electronic Filing (5)(f).(B) Notwithstanding Rule 62 of the Vermont Rules of Civil Procedure and Rule 8 of the Vermont Rules of Appellate Procedure, an appeal to the Supreme Court by the Secretary shall stay the dissolution of an emergency judicial order. An appeal by the respondent or the Attorney General shall not stay the operation of an emergency or other order but shall stay payment of a penalty. A respondent may seek a stay in the Supreme Court pursuant to Rule 8 of the Vermont Rules of Appellate Procedure.(e)Procedure for Review of Final Municipal Solid Waste Orders.(1)Generally. This subdivision shall govern requests for review under 24 V.S.A. § 2297b of a final solid waste order issued by the legislative body of a municipality pursuant to 24 V.S.A. § 2297a.(2)Notice of Request; Stay. Review of a municipal solid waste order shall be taken by filing a notice of the request with the clerk of the Environmental Court and with the municipal clerk within 14 days of receipt of the final order. The notice operates as a stay of any order issued, and payment of any penalty imposed, pending the hearing.(3)Hearing. Review shall be de novo and shall be governed by paragraph (d)(5) of this rule, substituting "legislative body" for "Secretary."(4)Judgment. The court may reverse, affirm, modify, or vacate the order in accordance with 24 V.S.A. § 2297b(c), (d). In making its determination, the court shall consider the factors set forth in 24 V.S.A. § 2297a(a).(5)Appeals; Stay on Appeal. Appeals from Environmental Court decisions under this rule are governed by the 2010 Vermont Rules for Electronic Filing and the Vermont Rules of Appellate Procedure. On an appeal of a final judgment under this rule, Rule 62 of the Vermont Rules of Civil Procedure and Rule 8 of the Vermont Rules of Appellate Procedure shall govern stays, and the decision of the Environmental Court on all matters other than penalties shall be deemed to be judgments in an action for an injunction for purposes of those rules.Added Dec. 21, 2004, eff. 2/21/2005; amended Jan. 25, 2005, eff. 1/31/2005; 7/1/2015, eff. 9/1/2015; amended Sept. 20 2017 and amended Dec. 6, 2017, eff. 1/1/2018; amended Dec. 10, 2019, eff. 3/2/2020.Reporter's Notes-2020 Amendment
Rule 4(a)(2), (d)(6), and (e)(5) is amended to clarify that the references are to the 2010 Vermont Rules for Electronic Filing, which are currently applicable in the Environmental Division. See Reporter's Notes to simultaneous amendment to V.R.E.C.P. 3.
Reporter's Note - 2018 Emergency Amendment
Rule 4(b), as amended September 20, 2017, effective January 1, 2018, is further amended. The Time period in Rule 4(b) for the Attorney General to move the court to vacate an order was amended from 10 days 14 days in keeping with the day-is-a-day amendments to V.R.C.P. 6. The 10-day time period, however, comes directly from a statute. 10 V.S.A. § 8007(c). To avoid any conflict between the rule and the statute, the rule is amended back to the former time period of 10-days. As of January 1, 2018, the 10-day period will be counted using the day-is-a-day counting system.