Vermont Hazardous Materials Cleanup

1. Matt Chapman Vermont Agency of Natural Resources June 23, 2011 Vermont Hazardous Materials Cleanup

2. Releases of a hazardous material • Hazardous materials under Vermont law are the same as hazardous substances under federal law, except Vermont includes petroleum. • Releases of a hazardous material are prohibited and all releases are to be reported to ANR or Emergency management immediately.

3. Vermont’s CERCLA analog • 10 V.S.A. 6615 creates strict joint and several liability for the release of hazardous materials. • Liability is retroactive for releases that occurred prior to effective date of law. • Liability may be for causing the release or solely because the person is the current owner of real property. 10 V.S.A. 6615(a)(1). • Responsible parties have a right of contribution against other property owners and persons causing the release. 10 V.S.A. 6615(i).

4. Defenses to Liability • Generally the same as defenses under CERCLA. • The “innocent landowner” defense differs from its CERCLA. • The Vermont Supreme Court recently ruled on the state’s “innocent landowner” defense in State v. Howe Cleaners. In its ruling, the Court made a determination that a party’s reliance on a seemingly appropriate Phase I ESA was sufficient to satisfy the “all appropriate inquiry” requirement for the innocent owner defense.”

5. Municipal exemption to State Superfund Liability 10 V.S.A. § 6615(d)(3). • Municipality must not have caused or contributed to the release. • Municipality must have acquired the property involuntarily. • Municipality must either: • Enter an agreement with ANR on the marketing of the property; or • Enter into the Brownfields program.

6. Benefits of municipal acquisition. Work done to assess and remediate contamination included in costs to redeem the property, including any municipal, state, and federal costs incurred. 32 V.S.A. § 5260.

7. Secured Lender exemption to liability. • A secured lender is not liable for the following: • Holding a security interest. • Providing financial or business advice. • Providing general advice on compliance with environmental laws. • There are a number of other situations where secured lenders are not liable. See 10 V.S.A. § 6615(g)(1). • Secured lenders and lenders in possession are liable if they worsen site conditions.

8. Lenders in possession • Generally, lenders in possession are liable, unless: • the secured lender enters an agreement with ANR that defines the lender’s liability for cleanup. See 10 V.S.A. § 6615 (h). • the secured lender enters the statutory Brownfields program. See 10 V.S.A. Chapter 159, Subchapter 3.

9. Releases of petroleum from an UST or AST • Eligible for funding from a state administered fund known as the Petroleum Cleanup Fund or PCF. 10 V.S.A. 1941. • The fund acts similar to an insurance policy with a portion of the cleanup that a property owner is responsible for and a cap on the amount of reimbursements that the State can pay from the fund. • Motor fuel and home heating fuel releases eligible for reimbursement.