Act No. 73 (H.258). Conservation and land development; environmental enforcement; public participation

An act relating to public participation in environmental enforcement proceedings

This act amends public participation requirements for environmental enforcement actions in order to comply with federal requirements for certain federally authorized programs and in order to standardize public participation for all agency of natural resources (ANR) and natural resources board (NRB) enforcement actions. The act requires ANR and the NRB to post for public comment a draft enforcement action-including an administrative order, assurance of discontinuance, or civil complaint-for 30 days. If no comments are received during the 30-day notice period, the enforcement action may be filed with the environmental division for final processing.

If comments are received during the 30-day period, ANR or the NRB may withdraw the draft enforcement action or send it and all comments to the environmental division. If the enforcement action is sent to the environmental division, ANR or the NRB also shall post the action to its website for 14 days. During the 14 days, a person may file a motion for permissive intervention. To intervene, a person must be an "aggrieved person" who commented during the 30-day comment period. The act defines "aggrieved person" as one who alleges an injury to a particularized interest protected by an ANR or NRB enforceable statute, and the alleged injury is attributable to a violation addressed by the enforcement action. Permissive intervention is discretionary, and the environmental division may deny intervention.

If no intervention motion is received, the environmental division may finalize the enforcement action. If intervention is granted, it is for the sole purpose of establishing that the enforcement action is insufficient to carry out the purposes of the environmental enforcement chapter. If the environmental division finds the enforcement action insufficient, it may vacate the action. ANR or the NRB shall not oppose any motion for permissive intervention. If a person is granted intervention, ANR or the board may oppose the intervenor's claim. The environmental division may hold a hearing on the intervenor's claim.

ANR, but not the NRB, shall investigate all citizen complaints of a violation of a federally authorized program and shall respond to the complaint in writing. The act also authorizes ANR to use an administrative order, assurance of discontinuance, or emergency order to recover from a violator up to $20,000.00 in monies ANR expends from special funds to remediate a violation. The act also transfers the jurisdiction over ANR and NRB civil complaints from the judicial bureau to the environmental division.

Effective Date: July 1, 2012