Download this document in WordPerfect 6.1 format

NO. 80. AN ACT RELATING TO A PILOT PROJECT WITH RESPECT TO THE REDEVELOPMENT OF CONTAMINATED SITES, ELIGIBILITY TO PARTICIPATE IN THE CONTAMINATED SITES PROGRAM, AND RELATED MATTERS.

(H.209)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 10 V.S.A. § 6615a(a) is amended to read:

(a) Establishment of program. A property cleanup program is hereby created to enable certain interested parties*[, prior to becoming an owner or operator of a property contaminated by hazardous materials,]* to request the assistance of the secretary in reviewing and overseeing work plans to investigate, abate, remove, remediate and monitor those properties in exchange for protection from certain liabilities under section 6615 of this title. This program, to be called the "redevelopment of contaminated properties program," shall be established within the agency of natural resources, department of environmental conservation.

(1) Pilot project. Between the dates of January 1, 1998 and July 1, 2001, no more than five new projects may be eligible to participate in the pilot project established under this subdivision. Eligibility will be determined on a first-come first served basis, based upon the order in which applications are received, between those dates. An applicant will retain his or her rank in the order of filed applications as long as the secretary does not issue a finding that the applicant has failed to progress with the project in a timely fashion, in which case the next applicant will assume that ranking, and the applicant who is the subject of the failure to progress finding shall be moved to the bottom of the list. New applications to participate in the pilot project will not be accepted after July 1, 2001.

(2) Benefits of participation in pilot project. Participants in the pilot project will be entitled to all benefits specified in this section.

Sec. 2. 10 V.S.A. § 6615a(c)(1) is amended to read:

(1) Subject to the provisions of this section, an eligible person, who is not otherwise liable under section 6615 for releases or threatened releases of hazardous materials at a property, shall not be liable under subdivision 6615(a)(1) of this title for the releases or threatened releases of hazardous materials, solely as a result of *[becoming]* being an owner or operator of the property, if the eligible person complies with this section and obtains a certificate of completion pursuant to subsection (k) of this section.

Sec. 3. 10 V.S.A. § 6615a(d)(6) is amended to read:

(6) There shall be no protection from liability under subdivision (c)(2) of this section for a successor, or forbearance from action provided by subdivision (c)(5) of this section, if that successor or any of its principals, owners, directors, affiliates or subsidiaries:

(A) ever held an ownership interest in the property or in any related fixtures or appurtenances, excluding a secured lender's holding indicia of ownership in the property primarily to assure the repayment of a financial obligation, and except in the case of an innocent owner as specified in subdivision (f)(1)(B)(ii) of this section;

* * *

Sec. 4. 10 V.S.A. § 6615a(e) is amended to read:

(e) Application process.

(1) A person shall submit to the secretary a complete application consisting of:

* * *

(F) a certification, under oath and notarized, from the person:

* * *

(ii) that, as to each person who would benefit from any protection from liability pursuant to subdivision (c)(1) of this section, neither that person nor any of its principals, owners, directors, affiliates or subsidiaries:

(I) currently holds or ever held an ownership interest in the property or in any related fixtures or appurtenances, excluding a secured lender's holding indicia of ownership in the property primarily to assure the repayment of a financial obligation, and except in the case of an innocent owner as specified in subdivision (f)(1)(B)(ii) of this section;

* * *

Sec. 5. 10 V.S.A. § 6615a(f) is amended to read:

(f) Eligibility.

(1) A person is eligible if the secretary determines all of the following:

(A) There is a release or threatened release of a hazardous material at theproperty which the person proposes to redevelop.

(B)(i) The person is not liable under section 6615 of this title for any release or threatened release at the property. Any determination of nonliability under this subdivision is solely for purposes of the initial eligibility determination for this program and shall not have any collateral effect in other proceedings*[.]*; or

(ii)(I) The person is owner of the property, but is an Ainnocent owner@ who did none of the following:

(aa) hold an ownership interest in the property or in any related fixtures or appurtenances, excluding a secured lender's holding indicia of ownership in the property primarily to assure the repayment of a financial obligation, at the time of any disposal of hazardous materials on the property;

(bb) directly or indirectly cause or contribute to any releases or threatened releases of hazardous materials at the property;

(cc) operate, or control the operation, at the property of a facility for the storage, treatment, or disposal of hazardous materials at the time of the disposal of hazardous materials at the property;

(dd) dispose of, or arrange for the disposal of hazardous materials at the property; or

(ee) generate the hazardous materials that were disposed of at the property.

(II) The secretary may accept an affidavit of innocence to establish the fact of innocence, or the secretary may request further information and investigate, as appropriate, to determine eligibility under this section. Any determination of innocence under this subdivision is solely for purposes of the initial eligibility determination for this program and shall not have any collateral effect in other proceedings.

* * *

Sec. 6. 10 V.S.A. § 6615a(g)(1) and (2) are amended to read:

(1) If the secretary determines that a person is eligible under subsection (f) of this section, the eligible person or successor shall submit a site investigation work planto the secretary and a fee of $5,000.00 to be applied toward the direct and indirect costs of the secretary's review and oversight of the performance of the site investigation and any corrective action plan. The work plan shall identify the person or persons to conduct the site investigation, who shall carry appropriate insurance *[or]*, post a bond in an amount specified by the secretary, meet other qualifications as determined by the secretary, or any combination of the above, as determined by the secretary. The work plan shall describe a site investigation which fulfills the following objectives:

* * *

(2) The secretary shall evaluate the site investigation work plan and shall either approve, approve with conditions or disapprove the site investigation work plan. The secretary may contract with private engineers, hydrologists or site professionals of the secretary's sole choice to provide the investigation and review required by this subsection. The secretary shall set such insurance, bond or other surety requirements of these professionals as the secretary may deem appropriate. The costs and expenses of any professionals retained by the secretary for this investigation shall be the sole responsibility of the eligible person. If the secretary approves the site investigation work plan with conditions or disapproves, the eligible person or successor shall resubmit a revised site investigation work plan for approval or shall withdraw from the program. If the secretary requests additional or corrected information at any time during the evaluation of the site investigation work plan, the eligible person or successor shall submit the information requested or withdraw from the program.

Sec. 7. 10 V.S.A. § 6615a(h)(2) is amended to read:

(2) The secretary shall evaluate the corrective action plan, and shall either approve, approve with conditions, or disapprove the corrective action plan. The secretary may contract with private engineers, hydrologists or site professionals of the secretary's sole choice to provide the investigation and review required by this subsection. The secretary shall set such insurance, bond or other surety requirements of these professionals as the secretary may deem appropriate. The costs and expensesof any professionals retained by the secretary for this investigation shall be the sole responsibility of the eligible person. If the secretary approves with conditions or disapproves the corrective action plan, the eligible person or successor shall submit a revised corrective action plan for approval or shall withdraw from the program. If the secretary requests additional or corrected information at any time during evaluation of the corrective action plan, the eligible person or successor shall submit the information requested or withdraw from the program.

Sec. 8. 10 V.S.A. § 6615a(h)(5) is amended to read:

(5) Prior to approval of the corrective action plan submitted pursuant to subdivision (h)(1) of this section, the secretary shall provide public notice, which may be satisfied by a notice published in a local newspaper generally circulated in the area where the property is located and written notice to the town clerk for the town in which the property is located, provided together with a request that the notice be posted in a conspicuous place. The notice shall set forth any proposed abatement, investigation, remediation, removal, and monitoring activities; shall state that the secretary is considering approval of a corrective action plan providing for such activities; shall request public comment on the proposed activities within 15 days after publication; and shall state the name, telephone number and address of an agency official able to answer questions and receive comments on the matter. The public comment period may be extended by the secretary if public interest warrants the extension. The secretary shall review public comment, if any, prior to approval of the corrective action plan. The decision of the secretary as to whether a corrective action plan should be approved is within the secretary's sole discretion and is final. Upon approval of a corrective action plan, the secretary shall inform the person, in general, of future requirements under this section that must be met by the eligible person or successor, and shall provide the person with a tentative schedule that establishes the processing times that the agency is likely to require, once an eligible person or successor has completed the various stages of the process established under this section, depending upon the scope and complexity of the project in question, and other demands on agency staff.

(A) With respect to properties in the pilot project established under subdivision (a)(1) of this section, except in the case of a corrective action plan adjustment as provided under subdivision (h)(5)(B) of this section, once the secretary has approved a corrective action plan, the secretary may not amend the plan, unless amendment is requested by an eligible person or successor.

(B) With respect to properties in the pilot project established under subdivision (a)(1) of this section, the secretary may amend the approved plan by requiring a one-time corrective action plan adjustment, as deemed in the public interest by the secretary, which may increase the costs of completing the corrective action plan by no more than 30 percent. In this instance, this amended plan is the plan that must be performed successfully before obtaining a certificate of completion, unless further amendment is requested by an eligible person or successor.

(C) With respect to properties in the pilot project established under subdivision (a)(1) of this section, notwithstanding the fact that the secretary issues a certificate of completion under subsection (k) of this section, if at any time the secretary finds that a completed corrective action plan fails to adequately protect human health and the environment and fails to meet all applicable state and federal cleanup standards, the secretary may:

(i) exercise authority under section 6615 of this title against any liable person, except the person or the successor of the person that completed the corrective action plan; and

(ii) perform all investigation, abatement, removal, remediation, or monitoring activities necessary to ensure the property meets the standards.

Sec. 9. 10 V.S.A. § 6615a(i)(1) is amended to read:

(1) The eligible person or successor shall perform all investigation, abatement, remediation, removal, and monitoring activities in accordance with the approved corrective action plan and all amendments to the plan, and with all applicable local, state and federal law. The corrective action plan may be amended during its performance, subject to approval by the secretary. At any time during the performanceof a corrective action plan, except as otherwise provided in this section with respect to properties participating in the pilot project created under subsection (a) of this section, the plan may be amended, as necessary to attain the cleanup levels established in the corrective action plan.

Sec. 9a. 10 V.S.A. § 6615a(j)(5) is added to read:

(5) At any stage of the process established under this section, the secretary may require an eligible person or successor to provide such financial guarantees as the secretary deems appropriate, including letters of credit or performance bonds, for the purpose of ensuring completion of all activities approved or directed by the secretary under this section, and ensuring fulfillment of all obligations assumed under this section.

Sec. 10. 10 V.S.A. § 6615a(k)(1) is amended to read:

(1) After completion of all of the activities required under the corrective action plan, the eligible person or successor shall file a completion report with the secretary. The completion report shall describe the activities performed under the corrective action plan and any amendments to the plan; describe any problems encountered; and include a certification by the eligible person or successor that the activities were performed in accordance with the corrective action plan. Upon receipt of the completion report, the secretary will determine if the corrective action plan has been completed and if additional work is required; except that, in case of a project participating in the pilot project created under subsection (a) of this section, the secretary may only determine whether additional work is required in order to complete the plan. The eligible person or successor shall perform any additional activities specified by the secretary necessary to complete the corrective action plan and shall submit a new completion report. Once the secretary determines that the eligible person or successor has successfully completed the corrective action plan, and has paid all fees and costs due under this section, the secretary shall issue a certificate of completion, which shall certify that the work is completed and shall include a description of any land use restrictions and any other conditions required by the corrective action plan.

Sec. 11. 10 V.S.A. § 6615a(m) is added to read:

(m) Coordination with federal program. The secretary shall endeavor to coordinate the program created under this section with related federal programs, and to enter appropriate memoranda of understanding on the matter.

Sec. 12. 10 V.S.A. § 6615(d) is amended to read:

(d)(1) There shall be no liability under this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of hazardous material and the damages resulting therefrom were caused solely by any of the following

(2) There shall be no liability under subdivision (a)(1) of this section, regarding a particular facility, for a person otherwise liable who can establish all of the following by a preponderance of the evidence:

(A) the release or threat of release of hazardous material on, under, or from thatperson's property and the resulting damages were caused solely by the migration of a release of hazardous materials that did not originate on that person's property;

(B) the release or threat of release of hazardous material and the resulting damages were caused solely by a third party who is not an employee or agent of the person, and whose action was not associated with a contractual relationship with the person;

(C) the hazardous substance was not deposited, intentionally contained, or disposed of on a facility while the facility was owned or operated by the person;

(D) the person, at the time of any transfer of the property from the person, disclosed any knowledge or information the person had, concerning the nature and extent of any such release;

(E) the person has not caused or contributed to a release, such as through activities that knowingly exacerbated the existing contamination, and has not knowingly affected the release in such a way as to require additional remediation;

(F) the owner or operator of the facility provides access for, and does not interfere with, remediation activities.

Approved: April 8, 1998