Towards the end of the 2013 legislative session, the Vermont House and Senate unceremoniously passed H. 226, advancing potentially significant changes to Vermont’s brownfield clean-up program. The updates generally fall into two categories: 1) align Vermont defenses to clean-up liability with federal defenses under CERCLA, and 2) provide new and improved options for municipalities and regional development corporations to participate in getting contaminated properties characterized, cleaned and prepared for redevelopment.
A core component of Vermont’s brownfield program is limitations on liability codified in Vermont statutes. Property owners can participate in the Brownfields Reuse Initiative Environmental Liability Limitation Program, which is run by Vermont’s Agency of Natural Resources. The legislation passed defines the amount of site investigation required to have been conducted by a person to be eligible to liability defenses the same as the “all appropriate inquiry” used by the U.S. Environmental Protection Agency in 40 C.F.R. Part 312. This change clarifies potential confusion created by the Vermont Supreme Court decision in State v. Howe Cleaners, which involved a fact-intensive inquiry into whether a property owner was eligible for the defenses to clean-up liability. The legislation also aligns the state rules governing limitation to liability for secured lenders with federal law.
Similar to some municipalities, some Vermont Regional Development Corporations (RDCs) play an important role in redeveloping contaminated properties in Vermont. RDCs can purchase, investigate, and remediate contaminated properties prior to selling them to private developers for redevelopment. Yet, the special status available to municipalities as an innocent owner when they elected to conduct predevelopment work was not available to RDCs. The legislation corrects this oversight, along with making several other technical modifications that would apply to both municipalities and RDCs acting in the predevelopment role.
Vermont Governor Shumlin is expected to sign the legislation into law in June.
