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BILL AS PASSED HOUSE AND SENATE 2007-2008

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H.669

AN ACT RELATING TO THE DURATION OF HISTORIC DOWNTOWN DESIGNATIONS AND BROWNFIELD RECLAMATION

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

* * * Historic Downtown  Designation Duration * * *

Sec. 1.  24 V.S.A. § 2792(a) is amended to read:

(a)  A “Vermont downtown development board,” also referred to as the “state board,” is created to administer the provisions of this chapter.  The state board members shall be the following permanent members, or their designees:

(1)  The secretary of commerce and community development;.

(2)  The secretary of transportation;.

(3)  The secretary of natural resources;.

(4)  The secretary of human services;.

(5)  The commissioner of public safety;.

(6)  The commissioner of housing and community affairs; and.

(7)  The state historic preservation officer.

(8)  Three public members representative of local government, one of whom shall be designated by the Vermont league of cities and towns, and two shall be appointed by the governor.


Sec. 2.  24 V.S.A. § 2793(c) is amended to read:

(c)  The state board shall review a community’s designation every three five years and may review compliance with the designation requirements at more frequent intervals.  If at any time the state board determines that the downtown development district no longer meets the standards for designation established in subsection (b) of this section, it may take any of the following actions:

(1)  require Require corrective action; .

(2)  provide Provide technical assistance through the Vermont downtown program; or .

(3)  remove Limit eligibility for the benefits established in section 2794 of this chapter without affecting any of the district’s previously awarded benefits.

(4)  Remove the district’s designation, with such removal not without affecting any of the district’s previously awarded benefits.

Sec. 3.  24 V.S.A. § 2793a(d) is amended to read:

(d)  The state board shall review a village center designation every three five years and may review compliance with the designation requirements at more frequent intervals.  If, at the any time of the review, the state board determines that the village center no longer meets the standards for designation established in subsection (a) of this section, it may take any of the following actions:

(1)  require Require corrective action; .

(2)  provide Provide technical assistance through the Vermont downtown program; or .

(3)  remove Limit eligibility for the benefits pursuant to subsection (c) of this section without affecting any of the village center’s previously awarded benefits.

(4)  Remove the village center’s designation, with such removal not without affecting any of the village center’s previously awarded benefits.

Sec. 4.  24 V.S.A. § 2793b(d) is amended to read:

(d)  The state board shall review a new town center designation every three five years and may review compliance with the designation requirements at more frequent intervals.  If at any time the state board determines the new town center no longer meets the standards for designation established in subsection (b) of this section, it may take any of the following actions:

(1)  require Require corrective action;.

(2)  provide Provide technical assistance through the Vermont downtown program; or.

(3)  remove Limit eligibility for the benefits pursuant to subsection (c) of this section without affecting any of the new town center’s previously awarded benefits.

(4)  Remove the new town center’s designation , with such removal not without affecting any of the town center’s previously awarded benefits.

Sec. 5.  EFFECTIVE DATE

Secs. 1-5 of this act shall take effect upon passage.

* * * Brownfield Reclamation * * *

Sec. 6.  PURPOSE

The purpose of this act is to create a property cleanup program within the agency of natural resources, that provides program participants with some protection from certain liabilities pursuant to 10 V.S.A. § 6615 in exchange for having the secretary of natural resources review and oversee work plans for investigation, abatement, removal, remediation, and monitoring a contaminated property.  The goals of the cleanup program are to:

(1)  Reduce and eliminate threats to human health and the environment presented by hazardous material contamination.

(2)  Establish risk‑based restrictions on future use of property when setting cleanup goals for a contaminated property.

(3)  Reuse historically productive properties that will revitalize communities and help address issues raised by economic shifts while maintaining and enhancing existing public infrastructure.

(4)  Utilize public investment and technical assistance to promote successful redevelopment projects.

(5)  Reduce state legal liability risks associated with a brownfields site for parties who assume responsibility for property remediation.

Sec. 7.  10 V.S.A. chapter 159, subchapter 3 is added to read:

Subchapter 3.  Brownfields Reuse and Environmental Liability Limitations

§ 6641.  BROWNFIELD PROPERTY CLEANUP PROGRAM; CREATION;
              POWERS

(a)  There is created the brownfield property cleanup program to enable certain interested parties to request the assistance of the secretary to review and oversee work plans for investigating, abating, removing, remediating, and monitoring a property in exchange for protection from certain liabilities under section 6615 of this title.  The program shall be administered by the secretary who shall:

(1)  Specify an appropriate amount or type of insurance; require the posting of a bond or other form of financial assurance; or establish other qualifications for persons carrying out activities related to the cleanup program.

(2)  Contract with private engineers, hydrologists, and site professionals to provide the investigation and review required by this subchapter.  The contract may be financed from the oversight costs established in subdivision 6644(5) of this title, or may bill an applicant who is not liable under subdivision 6615(a)(1) of this title for the services.

(3)  Release an applicant from state liability, provided the applicant is in compliance with this subchapter.

(b)  After approval of a site investigation work plan or a corrective action plan, the secretary shall notify the person of any future requirements under this subchapter, including a tentative schedule of processing times.

§ 6642.  DEFINITIONS

For the purposes of this subchapter:

(1)  “Applicant” means a person who has applied for relief from state liability through participation in the program.

(2)  “Brownfield site” means real property, the expansion, redevelopment, or reuse of which may be complicated by the release or threatened release of a hazardous material.  “Brownfield site” does not include any of the following:

(A)  A facility that is the subject of a planned or ongoing removal action under CERCLA.

(B)  A facility that is listed as a CERCLA site or is proposed for listing.

(C)  A facility that is the subject of any state or federal administrative or court order under any of the following authorities:

(i)  42 U.S.C. § 9601 et seq. (CLERCLA) or 10 V.S.A. § 6615 (state hazardous materials remediation).

(ii)  42 U.S.C. § 6901 et seq. (solid waste disposal act) or 10 V.S.A chapter 159 (solid waste or hazardous waste).

(iii)  33 U.S.C. § 1251 et seq. (federal Water Pollution Control act) or 10 V.S.A. chapter 47 (water pollution control).

(iv)  15 U.S.C. § 2601 et seq. (toxic substances control act).

(v)  42 U.S.C. § 300f et seq. (safe drinking water act) or 10 V.S.A. § chapter 56 (public water supply).

(D)  A facility that is subject to either of the following:

(i)  Corrective action under 42 U.S.C. § 6924(u) or 6928(h).

(ii)  Corrective action permit or order issued or modified to require the implementation of corrective measures.

(E)  A land disposal unit in regard to which both of the following apply:

(i)  A closure notification under subtitle C of  42 U.S.C. § 6921 et seq. has been submitted.

(ii)  Closure requirements have been specified in a closure plan or permit.

(F)  A facility that is subject to the jurisdiction, custody, or control of any instrumentality of the United States, except for land held in trust by the United States for an Indian tribe.

(G)  A portion of a facility to which both the following apply:

(i)  A release of polychlorinated biphenyls has occurred.

(ii)  Is subject to remediation under 15 U.S.C. § 2601 et seq. (toxic substances control act).

(H)  A portion of a facility for which assistance for response activity has been obtained under subtitle I of 42 U.S.C. § 6991 et seq. (solid waste disposal act) from the leaking underground storage tank trust fund established under 26 V.S.A. § 9508.

(3)  “CERCLA” means the Comprehensive Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq.

(4)  “Innocent current owner” means a person that owns real property where a release or threatened release of a hazardous material exists but the person did none of the following:

(A)  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 to assure the repayment of a financial obligation at the time of any disposal of hazardous materials on the property.

(B)  Directly or indirectly caused or contributed to any releases or threatened releases of hazardous materials at the property.

(C)  Operated or controlled 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.

(D)  Disposed of or arranged for the disposal of hazardous materials at the property.

(E)  Generated the hazardous materials that were disposed of at the property.

(5)  “Program”  means the brownfield property cleanup program

(6)  “Remediation standards” means standards developed by the secretary for the remediation of contaminated properties.  The secretary shall determine appropriate remediation standards on a site‑specific basis and shall consider all the following:

(A)  Future land use and the appropriate use of institutional controls.

(B)  Environmental media, including soil, groundwater, surface water, and air.

(C)  Requirements for source removal, treatment, or containment.

(D)  Appropriate use of monitored natural attenuation.

(E)  Any other issue related to the protection of public health and the environment.

§ 6643.  APPLICATION PROCESS

A person shall apply to the secretary for participation in the program on a form determined by the secretary accompanied by a nonrefundable application fee of $500.00.  The application shall include:

(1)  A preliminary environmental assessment of the property, a legal description of the property, a description of the physical characteristics of the property, the nature and extent of releases and threatened releases at the property, and the risks to human health and the environment presented by the releases or threatened release, and any other information requested by the secretary.

(2)  A description of the proposed redevelopment and use of the property.

(3)  A certification that the applicant has given timely notification to the public that provides a reasonable opportunity for public comment to the secretary regarding the information and material provided in subdivisions (2) and (3) of this section.

(4)  A notarized certification, on a form provided by the secretary, in which the applicant attests to all the following:

(A)  Each person who would benefit from liability protection pursuant to section 6653 of this title has disclosed to the secretary all information currently known to the person or in the person’s possession or control that relates to releases or threatened releases of hazardous materials at the property.

(B)  No person, including a principal, owner, director, affiliate, or subsidiary, who would benefit from liability protection pursuant to section 6653 of this title:

(i)  Currently holds or ever held an ownership interest in the property or in any related fixtures or appurtenances, except for either of the following:

(I)  A secured lender’s holding indicia of ownership in the property primarily to assure repayment of a financial obligation.

(II)  An innocent current owner.

(ii)  Directly or indirectly caused or contributed to any releases or threatened releases of hazardous materials at the property.

(iii)  Currently operates or controls or ever operated or controlled the operation at the property of a facility for the storage, treatment, or disposal of hazardous materials from which there was a release.

(iv)  Disposed of, or arranged for the disposal of hazardous materials at the property.

(v)  Generated hazardous materials that were disposed of at the property.

§ 6644.  GENERAL OBLIGATIONS

Any person participating in the program shall do all the following:

(1)  Not provide any information required under this subchapter by fraud, intentional misrepresentation, failure to disclose material information, or providing false certification.

(2)  Not engage in any activity that is inconsistent or interferes with monitoring, investigation, abatement, removal, or remediation activities or the conditions or restrictions in a certificate of completion.

(3)  Provide access to and cooperate with the secretary and any person liable pursuant to section 6615 of this title acting subject to the approval of the secretary for investigation, abatement, removal, remediation, or monitoring activities at the property.  The grant of access and all other provisions that the secretary determines necessary may be memorialized in the form of an interest in real property that runs with the land and is binding against successors and assigns.

(4)  Comply with all rules and procedures required by the secretary and obtain all necessary permits, certifications, and other required authorizations prior to beginning any site investigation or corrective action plan activities.

(5)  If an innocent current owner, pay the secretary an oversight fee of $5,000.00.  Upon depletion of this $5,000.00 fee, the applicant shall pay any additional costs of the secretary’s review and oversight of the site investigation or corrective action plan, or both.  Upon completion of the secretary’s review and oversight, any funds remaining shall be returned to the applicant, as determined by the commissioner.

(6)  Provide the secretary with all documents and information relating to the performance of the investigation, abatement, removal, remediation, and monitoring activities.

(7)  Defend, indemnify, save, and hold harmless the state from all claims and causes of action related to, or arising from, acts or omissions of the applicant in performing the site investigation and corrective action plan except in the case of either of the following:

(A)  Reimbursement of fees or costs improperly required by and paid to the secretary by the eligible person or successor.

(B)  A cause of action related to the state’s liability pursuant to subsection 6615(a) of this title.

§ 6645.  ELIGIBILITY

Not more than 30 days after the secretary receives a complete application, the secretary shall determine eligibility and provide written notice to the applicant of the secretary’s determination.  A person is eligible for participation in the program if the secretary determines all the following:

(1)  There is a release or threatened release of hazardous material at the property that the person proposes for remediation and redevelopment.

(2)  The applicant is not liable pursuant to section 6615 of this title for any release or threatened release of a hazardous material at the property or the person is an innocent current owner of the property.  The commissioner may accept an affidavit of innocence or may request further information and investigate to determine compliance with this subsection.  Any determination of innocence or liability under this subdivision is solely for the purpose of the initial eligibility determination for this program and shall have no collateral effect in other proceedings.

(3)  The property is a brownfield site or the secretary determines, on a site‑by‑site basis, both the following:

(A)  The property is not a brownfield site because it is excluded pursuant to subdivisions 6642(1)(A), (C)(ii) – (v), (D), (E), (G), or (H) of this title.

(B)  Participation in the program will promote the program objectives identified in subsection 6641(a) of this title.

§ 6646.  FORBEARANCE

The state may not bring an action against an applicant based on liability pursuant to subdivision 6615(a)(1) of this title, provided that the applicant has been determined to be eligible for the program and is working in good faith toward meeting the obligations required by this subchapter.

§ 6647.  SITE INVESTIGATION

(a)  The applicant shall submit a site investigation work plan to the secretary.  The work plan shall identify the person or persons who will conduct the site investigation.  The work plan shall provide a site investigation that satisfies all the following objectives:

(1)  Defines the nature, source, degree, and extent of the contamination.

(2)  Defines all possible pathways for contaminant migration.

(3)  Presents data that quantify the amounts of contaminants migrating along each pathway.

(4)  Defines all relevant sensitive receptors.

(5)  Determines the risk of contamination to human health and the environment.

(6)  Identifies appropriate abatement, removal, remediation, and monitoring activities, taking into consideration the proposed redevelopment for the property supported by sufficient information.

(7)  Provides a preliminary recommendation supported by sufficient information.

(b)  The secretary shall evaluate the site investigation work plan and shall either approve, approve with conditions, or disapprove the site investigation work plan.  If the secretary approves the site investigation work plan with conditions or disapproves the work plan, the applicant shall submit a revised site investigation work plan for approval, or the applicant shall withdraw from the program.  The applicant shall submit any additional or corrected information requested by the secretary at any time during the evaluation of the site investigation work plan.

(c)  After approval of the site investigation work plan, the applicant shall implement the site investigation in accordance with the approved work plan.

(d)  After completion of the site investigation, the applicant shall submit a site investigation report that describes the information gathered and provides recommendations that address the items identified in subsection (a) of this section.  The secretary may approve the site investigation report or, prior to approval, may require revisions to the report or further site investigation work under an amended site investigation work plan, or both.

(e)  If the approved site investigation report concludes that no further investigation, abatement, removal, remediation, or monitoring activities are required to protect adequately human health and the environment and to meet all applicable remediation standards, then the applicant may request a determination from the secretary that no additional investigation, abatement, removal, remediation, or monitoring activities are required.  The secretary may make that determination if the secretary determines both the following:

(1)  Redevelopment and reuse of the property will not cause, allow, contribute to, worsen, or delay any release or threatened release of hazardous materials at the property.

(2)  The releases or threatened releases that are not abated, removed, or remediated do not pose an unacceptable risk to human health, and the environment and applicable remediation standards are met.

(f)  If the approved site investigation report concludes that abatement, removal, remediation, or monitoring activities are required to protect adequately human health and the environment and to meet all applicable remediation standards, the applicant shall submit a corrective action plan in accordance with section 6648 of this title.

§ 6648.  CORRECTIVE ACTION PLAN

(a)  A corrective action plan shall clearly describe the basis and details of a proposed cleanup strategy that includes ensuring technical feasibility, an effective engineering design, reasonable costs, protection of human health and the environment, and compliance with the remediation standards.  The corrective action plan shall include all the following:

(1)  A description of all releases or threatened releases existing at the property.

(2)  A proposed plan for abatement, removal, and remediation of any release or threatened release, including any condition that has led or could lead to a release or threatened release.

(3)  A plan for continued monitoring of the property during and after the investigation, abatement, removal, and remediation activities are completed.

(4)  A description of applicable remediation standards.

(5)  Plans for all the following:

(A)  Quality assurance.

(B)  Sampling and analysis.

(C)  Health and safety considerations.

(D)  Data management and record keeping.

(6)  A proposed schedule for implementation of each task set forth in the proposed corrective action plan.

(b)  The secretary shall evaluate the corrective action plan and shall either approve, approve with conditions, or disapprove the corrective action plan.  The applicant shall submit any additional or corrected information requested by the secretary at any time during the evaluation of the corrective action plan.

(c)  The secretary may approve a corrective action plan for all or a portion of the releases or threatened releases at the property, provided the secretary determines that the corrective action plan will fulfill both the following:

(1)  Activities in the approved corrective action plan and the redevelopment and use of the property will not cause, contribute to, or worsen any release or threatened release of hazardous materials.

(2)  The corrective action plan provides for all investigation, abatement, removal, remediation, and monitoring activities required to protect human health and the environment and to meet all applicable remediation standards.

(d)  If the secretary approves a corrective action plan that addresses only a portion of the releases or threatened releases at the property, the secretary must find that the releases or threatened releases that are not abated, removed, or remediated pursuant to the corrective action plan do not and will not pose an unacceptable risk to human health and the environment and are in compliance with remediation standards.

(e)  Prior to approval of the corrective action plan, the secretary shall provide notice to the public by publishing notice in a local newspaper of general circulation where the property is located and providing written notice to the clerk for the municipality in which the property is located.  The clerk shall post the notice in a location conspicuous to the public.  The secretary shall review any public comment submitted prior to approval of the corrective action plan.  The notice shall include all the following:

(1)  A description of any proposed abatement, investigation, remediation, removal, and monitoring activities.

(2)  A statement that the secretary is considering approving a corrective action plan that provides for those activities.

(3)  A request for public comment on the proposed activities to be submitted within 15 days after publication.

(4)  The name, telephone number, and address of an agency official who is able to answer questions and accept comments on the matter.

(f)  After approval of a corrective action plan and any amendments to the plan, the secretary shall notify the claimant of all the following information:

(1)  A summary of the nature of the contamination identified on the property and the major components of the corrective action plan.

(2)  A detailed description of any restrictions on the future use of the property.

(3)  The location where all information relating to an approved corrective action plan and site investigation may be reviewed.

(g)  The person receiving the approval shall file the notice of approval of the corrective action in the land records of the municipality in which the property is located within 15 days of receipt of the approval.

§ 6649.  AMENDMENTS TO A CORRECTIVE ACTION PLAN

(a)  Except for the corrective action plan adjustment limitations provided  under subsection (b) of this section, at the applicant’s request or in the secretary’s discretion, the secretary may amend the plan if the secretary determines that the amendment is necessary to protect public health and the environment.

(b)  An approved corrective action plan of an applicant who became a participant in the program prior to acquiring any ownership interest in the property and who is not otherwise liable pursuant to section 6615 of this title may be amended only at the secretary’s discretion, provided the amendments to the corrective action plan do not increase the costs of completion by more than 30 percent of the estimated costs of the original corrective action plan.

(c)  Notwithstanding issuance of a certificate of completion pursuant to section 6653 of this title, if at any time the secretary finds that a completed corrective action plan fails to protect adequately human health and the environment or fails to meet all applicable remediation and federal cleanup standards, the secretary may do any of the following;

(1)  Exercise authority pursuant to section 6615 of this title against any liable person except the person or the successor of the person that completed the corrective action plan.

(2)  Perform all investigation, abatement, removal, remediation, or monitoring activities necessary to ensure the property meets all the applicable remediation standards.

§ 6650.  PROGRAM WITHDRAWAL

(a)  An applicant may withdraw from the program at any time, provided the applicant does all the following:

(1)  Files with the secretary a notice of intent to withdraw from the program.

(2)  Ensures that the site is stabilized.  Site stabilization includes any action necessary to ensure that work conducted at the property will not cause greater risk to human health and the environment than existed before the remediation work was begun and to ensure that the property will not pose an imminent hazard to human health or the environment.

(3)  Continues to comply with the general obligations of section 6644 of this title.

(b)  An applicant may withdraw from the program after the approval of a corrective action plan and the secretary has granted personal liability protection as authorized in subsection 6653(b) of this title provided the applicant does all the following:

(1)  Meets all the requirements of withdrawal pursuant to subsection (a) of this section.

(2)  Records a deed restriction on the property approved by the secretary.  The deed restriction shall include:

(A)  Any limitations on the uses of the property based on risk-based exposure criteria used in developing the corrective action plan.

(B)  Prohibitions against physical changes to the property.

(C)  A requirement that protective barriers to control remaining sources of contamination be installed and maintained.

(D)  Restrictions on groundwater use and requirements that alternative water supplies be provided.

(3)  Does not engage in an activity at the property that is inconsistent or interferes with the approved corrective action plan.

(4)  Does not violate any use restriction imposed on the property by the secretary.

(5)  Promptly reports and addresses contamination caused or exacerbated by a negligent or reckless action during corrective action.

§ 6651.  IMPLEMENTATION OF CORRECTIVE ACTION PLAN

(a)  The applicant shall perform all investigation, abatement, remediation, removal, and monitoring activities in accordance with the approved corrective action plan, any amendments to the plan, and all applicable local, state, and federal laws. 

(b)  If prior to the issuance of the certificate of completion, the applicant through the performance of an approved site investigation or corrective action plan worsens an existing release or threatened release of hazardous materials at the property, or causes a new release or threatened release, the applicant shall immediately notify the secretary, prepare and submit to the secretary an amendment to the corrective action plan for investigation, abatement, removal, remediation, and monitoring of the release or threatened release, and carry out the amended corrective action plan as approved by the secretary.

§ 6652.  CERTIFICATE OF COMPLETION

(a)  After completion of all activities required by the corrective action plan, the applicant shall file a completion report with the secretary.  The completion report shall include all the following:

(1)  Description of the activities performed under the corrective action plan and any amendments to the plan.

(2)  Description of any problems encountered

(3)  Certification by the applicant that the activities were performed in accordance with the corrective action plan.

(b)  Upon receipt of the completion report, the secretary shall determine whether additional work is required in order to complete the plan.  The applicant shall perform any additional activities necessary to complete the corrective action plan as required by the secretary and shall submit a new completion report.  When the secretary determines that the applicant has successfully completed the corrective action plan and paid all fees and costs due under this subchapter, the secretary shall issue a certificate of completion, which certifies that the work is completed.  The certificate of completion shall include a description of any land use restrictions and other conditions required by the corrective action plan.

(c)  If, on request of the applicant, the secretary determines that no further investigation, abatement, removal, remediation, or monitoring activities are required, the secretary shall issue a certificate of completion that includes a description of any required land use restrictions.

(d)  The secretary may determine that a corrective action plan and any amendments of an applicant who participated in the program prior to acquiring an ownership interest in the property and is not otherwise liable pursuant to section 6615 of this title have been substantially completed and that all fees and costs due under this subchapter have been paid and issue a certificate of completion.  The certificate of completion shall certify that the work is completed and may include conditions for operation and monitoring in addition to the requirements pursuant to section 6653 of this title.

(e)  A certificate of completion issued pursuant to this section shall contain a statement that the protection from liability pursuant to subsection 6653(a) of this title is in effect.  The person receiving the certificate of completion shall file it in the land records for the municipality in which the property is located.

§ 6653.  RELEASE FROM LIABILITY; PERSONAL RELEASE FROM
              LIABILITY

(a)  An applicant who has obtained a certificate of completion pursuant to section 6652 of this title and successor owners of the property included in the certificate of completion who are not otherwise liable under section 6615 for the release or threatened release of a hazardous material at the property shall not be liable under subdivision 6615(a)(1) of this title for any of the following:

(1)  A release or threatened release that existed at the property at the time of the approval of the corrective action plan and complies with one or both of the following:

(A)  Was discovered after the approval of the corrective action plan by means that were not recognized standard methods at the time of approval of the corrective action plan.

(B)  The material was not regulated as hazardous material until after approval of the corrective action plan.

(2)  Cleanup after approval of the corrective action plan was done pursuant to more stringent cleanup standards effective after approval of the corrective action plan.

(b)  A person who meets the requirements of subsection 6650(b) of this title shall not be liable under subdivision 6615 (a)(1) of this title for the release of a hazardous material that is addressed in a corrective action plan approved by the secretary.  A release from liability under this subsection is personal and does not run with the property or apply to successors in interest to the property.

(c)  A release from liability under this section or forbearance from action provided by section 6646 of this title does not extend to any of the following:

(1)  A release or threatened release of a hazardous material that was not present at the time the applicant submitted an application pursuant to this subchapter where the release or threatened release:

(A)  has not been addressed under an amended corrective action plan approved by the secretary; or

(B)  was caused by intentional or reckless conduct by the applicant or agents of the applicant.

(2)  Failure to comply with the general obligations established in section 6644 of this title.

(3)  A release that occurs subsequent to the issuance of a certificate of completion.

(d)  There shall be no protection from liability under this section or forbearance under section 6646 of this title for a successor if that successor or any of its principals, owners, directors, affiliates, or subsidiaries:

(1)  Ever held an ownership interest in the property or in any related fixtures or appurtenances, excluding a secured lender who holds indicia of ownership in the property primarily to assure repayment of a financial obligation, except in the case of an innocent owner.

(2)   Directly or indirectly caused or contributed to any release or threatened release of hazardous materials at the property.

(3)  Currently operates or controls or ever operated or controlled the operation on the property of a facility for the storage, treatment, or disposal of hazardous materials from which there was a release or threatened release of hazardous materials.

(4)  Disposed of or arranged for the disposal of hazardous materials at the property.

(5)  Generated hazardous materials that were disposed of at the property.

§ 6654.  BROWNFIELD REVITALIZATION FUND; CREATION;
              ASSISTANCE

(a)  There is created a brownfield revitalization fund that shall be a special fund created pursuant to subchapter 5 of chapter 7 of Title 32 to be administered by the secretary of commerce and community development to aid applicants in the redevelopment of brownfield cleanup program by assessing and remediating sites.  Moneys received by the secretary of natural resources for application and participation in the program shall be deposited in the redevelopment of contaminated properties account of the environmental contingency fund established in section 1283 of this title.

(b)  The fund shall comprise of all the following;

(1)  State or federal funds appropriated by the general assembly.

(2)  Gifts, grants, or other contributions.

(c)  A person may apply to the secretary of commerce and community development for financial assistance in the form of a grant or loan from the brownfield revitalization fund for the purpose of completing characterization, assessment, or remediation of a site only after receipt of a work plan approved by the secretary submitted pursuant to the brownfield property cleanup program unless the application is for a project that has been determined to be ineligible for the program and is otherwise appropriate for funding pursuant to subsection (d) of this section.

(d)  In order to determine an award of financial assistance, the secretary of commerce and community development in consultation with the secretary of natural resources shall consider all the following:

(1)  The extent to which the proposed project will facilitate the identification and reduction of threats to human health and the environment associated with exposure to hazardous materials, pollutants, or contaminants.

(2)  The extent to which the proposed project will facilitate the use or reuse of existing infrastructure.

(3)  The potential for the proposed project to stimulate economic development.

(4)  The extent to which the proposed project will respond to local or regional housing needs.

(5)  The level of participation by a local community relating to remediation and future use of the brownfield site.

(6)  The extent to which a grant or loan will meet the needs of a community that due to a small population or the low income of the community is unable to draw on other funding sources for environmental remediation and subsequent redevelopment of the area in which a brownfield site is located.

(7)  The extent to which a grant or loan will facilitate the creation or preservation of or an addition to a park, greenway, underdeveloped property, recreational property, or other property used for nonprofit purposes.

(8)  The extent to which the grant or loan will create a more balanced geographic distribution of awards from the brownfield revitalization fund.

(e)  A grant may be awarded by the secretary of commerce and community development with the approval of the secretary of natural resources, provided:

(1)  A grant may not exceed $50,000.00 for characterization and assessment of a site.

(2)  A grant may not exceed $200,000.00 for remediation of a site.

(3)  A grant may be used by an applicant to purchase environmental insurance relating to the performance of the characterization, assessment, or remediation of a brownfield site in accordance with a corrective action plan approved by the secretary of natural resources.

(4)  Financial assistance may be provided to applicants by developing a risk sharing pool, an indemnity pool, or other insurance mechanism designed to help applicants.

(5)  All reports generated by financial assistance from the brownfield revitalization fund, including site assessments, site investigations, feasibility studies, corrective action plans, and completion reports shall be provided as hard copies to the secretaries of commerce and community development and of natural resources.

(f)  The Vermont economic development authority, VEDA, is authorized to make loans on behalf of the state pursuant to this section.  Annually, the secretary of commerce and community development with the approval of the secretary of natural resources in consultation with the VEDA manager shall determine an amount from the brownfield revitalization program that will be available to VEDA for loans.  Proceeds from repayment of loans shall be deposited in the brownfield revitalization fund and shall be available for future grants and loans under this section.  Loans under this subsection shall be issued and administered by VEDA, provided:

(1)  Loan may be awarded only to applicants who have been determined eligible by the secretary of commerce and community development with the approval of the secretary of natural resources, and the secretary of commerce and community development has certified that the applicant and the project are eligible for financing or assistance under this section and the project has priority for an award of financial assistance.

(2)  A loan to an applicant may not exceed $250,000.00 and may be used for characterization, assessment, or remediation subject to all the following conditions:

(A)  Repayment of a loan shall commence no later than one year following completion of the project for which the loan was used.

(B)  The rate of interest on loans shall be set by VEDA in consultation with the secretary of commerce and community development.  The interest rate shall be sufficiently attractive to advance the purposes of this subchapter and may be less than the prevailing borrowing rates available to similarly situated applicants from private lenders, but not less than zero percent.

(C)  Loans shall be made in accordance with the terms and conditions specified in a loan agreement executed by VEDA and the applicant.  The loan agreement shall specify the terms and conditions of the loan and repayment and any other terms and conditions determined to be necessary by VEDA and the secretaries of natural resources or of commerce and community development.

(D)  Disbursement of loan proceeds shall be based on certification by the loan recipient that costs for which reimbursement is requested have been incurred or paid by the recipient for activities under the approved plan.  The loan recipient shall provide supporting evidence of payment on request of VEDA.  Interim financing charges or short-term interest costs may constitute an allowable cost of a project for which a loan may be used.

(E)  In the event of default, any amounts owed on the loan shall be considered a debt for the purposes of 32 V.S.A. § 5932(4).  VEDA may recover this debt pursuant to the set-off debt collection remedy established pursuant to 32 V.S.A. §§ 5833 and 5934.

(F)  The applicant has certified that all state and federal permits and licenses necessary to undertake the project for which financing is being sought have been or will be obtained prior to disbursement of loan funds by VEDA.

(G)  The secretary of commerce and community development has certified to VEDA that the applicant and the project are eligible for financing or assistance under this section, and the project has priority for financial assistance.

(3)  The secretary of commerce and community development in consultation with the secretary of natural resources shall maintain a prioritized list of projects that are eligible for financial assistance under this section at least annually.  In order to prioritize, the secretary of commerce and community development shall consider at a minimum, the criteria set forth in subsection (d) of this section and the following:

(A)  The severity of any health or environmental hazard to be remediated.

(B)  The population to be served.

(C)  The readiness of the project to proceed to the next planning or construction step.

(4)  Neither the state nor VEDA shall be responsible for owning or operating a project or for completing a corrective action plan if a grant or loan recipient defaults on a loan obligation, abandons the project site, or fails to complete a corrective action plan to the satisfaction of the secretary.

(5)  The secretary of commerce and community development or the secretary of natural resources and VEDA may enter into agreements on behalf of the state with federal agencies in order to obtain grants and awards to further the purposes of the brownfield revitalization fund, provided that any grant or award has been approved in compliance with 32 V.S.A. § 5.

(6)  Annually on or before January 15, the secretary of commerce and community development and VEDA in consultation with the secretary of natural resources shall submit a report to members of the joint fiscal committee, the senate committees on economic development, housing and general affairs and on natural resources and the house committees on commerce and on natural resources and energy.  The report shall include information for the previous fiscal year, including the balance in the fund, grant and loan awards made, funds anticipated to be available in the next fiscal year, information relating to brownfield remediation activities, including the number, location, and status of brownfield sites and any other related information.


§ 6655.  STATE PLAN FOR BROWNFIELD RECLAMATION

The agency of natural resources and the agency of commerce and community development shall jointly develop a state plan for brownfield reclamation that includes both of the following:

(1)  An inventory and assessment of potential sites prioritized by the ease of reducing the threat to public health, the availability of development opportunities, and the highest expected return on public investment.

(2)  Methods and strategies for coordinating remediation with eventual usage of the sites, reclamation of high priority projects, financing projects with various public and private funding, and assuring consistent investment by the state for a minimum of ten years in order to return as many properties as possible to recreation, parks, green space, housing, and commercial uses.

§ 6656.  BROWNFIELD ADVISORY COMMITTEE

(a)  There is established a brownfield reuse and environmental liability limitation advisory committee to review the operation of the program established under this subchapter and to recommend program and legislative changes to improve the program and increase brownfield cleanup.  The advisory committee shall submit an annual report of its work and recommendations to the general assembly on or before January 15.  The committee shall be composed of the following 10 members:

(1)  The secretary or designee who shall be chair.

(2)  The secretary of commerce and community affairs or designee who shall be vice chair.

(3)  The attorney general or designee.

(4)  A member of the Vermont association of planning and development agencies, appointed by the association.

(5)  Six members to be appointed by the chair:

(A)  A developer of large projects with experience in brownfield redevelopment.

(B)  A developer of small projects with experience in brownfield redevelopment.

(C)  An attorney with experience representing brownfield redevelopers.

(D)  Two commercial real estate brokers with experience in the sale of brownfield properties.

(E)  A representative of a regional development corporation.

(b)  The advisory committee shall focus its deliberations on the following issues: 

(1)  Fair distribution of historic liability.

(2)  Funding mechanisms.

(3)  Exemptions for regional development corporations.

(4)  Other recommendations of the advisory committee.

Sec. 8.  10 V.S.A. § 6615(d)(3) and (i) are amended to read:

(3)  A municipality shall not be liable under this section provided that the municipality can show all the following:

* * *

(C)  The municipality has entered into an agreement with the secretary regarding sale of the property acquired or has undertaken abatement, investigation, remediation, or removal activities as required by section 6615a of this title subchapter 3 of this chapter.

(i)  In an action brought by the secretary under this section, a responsible person may implead, or in a separate action a responsible person may sue, another responsible person or persons and may obtain contribution or indemnification.  A responsible person who has resolved its liability to the state under this section through a judicially approved settlement and a secured lender or fiduciary with whom the secretary has entered into an agreement under subsection (h) of this section shall not be liable for claims for contribution or indemnification regarding matters addressed in the judicially approved settlement or in the agreement.  Likewise, an eligible a person or successor who has obtained a certificate of completion pursuant to section 6615a of this title subchapter 3 of this chapter shall not be liable for claims for contribution or indemnification regarding releases or threatened releases described in the approved corrective action plan, as amended.  Such a settlement or agreement or certificate of completion does not discharge any other potentially responsible person unless its terms so provide, but it reduces the potential liability of other potentially responsible persons by the relief agreed upon.  A secured lender or fiduciary with whom the secretary has entered into an agreement under subsection (h) of this section may not seek contribution or indemnification on the basis of such agreement from any other potentially responsible person.  In any action for contribution or indemnification, the rights of any person who has resolved its liability to the state shall be subordinate to the rights of the state.

Sec. 9.  REPEAL

10 V.S.A. § 6615a (redevelopment of contaminated properties) is repealed.

Sec. 10, to read as follows:

Sec. 10.  REPEAL

10 V.S.A. § 6656 is repealed January 1, 2011.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us