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2005 Vermont Code - § 6615a. — Redevelopment of contaminated properties program

§ 6615a. Redevelopment of contaminated properties program

(a) Establishment of program. A property cleanup program is hereby created to enable certain interested parties 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.

(b) Definitions. For the purposes of this section:

(1) "Eligible person" means a person, as defined in section 6602 of this chapter, who has been determined to be eligible for the redevelopment of contaminated properties program pursuant to subsection (f) of this section. The term "eligible person" shall include a secured lender who holds indicia of ownership in the property, as those indicia are described in subdivision 6602(23) of this title, if the secured lender has been determined to be eligible for the redevelopment of contaminated properties program pursuant to subsection (f) of this section.

(2) "Remediation standards" means procedures developed by the secretary of natural resources for the remediation of contaminated properties. The secretary shall determine appropriate remedial 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.

(D) Appropriate use of monitored natural attenuation.

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

(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 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.

(2) Subject to the limitations on protection from liability under subsection (d) of this section and the obligations under subsection (j) of this section, the protection from liability provided by subdivision (c)(1) of this section shall apply to all successors to an ownership interest in the property.

(3) Subject to the limitations on protection from liability under subsection (d) of this section and the obligations under subsection (j) of this section, a person protected under subdivision (c)(1) or (2) of this section shall not be liable under subdivision 6615(a)(1) of this title:

(A) for releases or threatened releases, existing at the property at the time of the approval of the corrective action plan, that were discovered, after 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) for releases or threatened releases, existing at the property at the time of the approval of the corrective action plan, that were not regulated as hazardous material until after approval of the corrective action plan; or

(C) for additional cleanup, after approval of the corrective action plan, if that additional cleanup is required by more stringent cleanup standards that became effective after approval of the corrective action plan.

(4) The secretary shall not grant any protection from liability to an eligible person or successor pursuant to this program, other than the protection provided in subdivisions (1) and (2) of this subsection.

(5) If an eligible person or successor is implementing, in good faith, the approved site investigation work plan or corrective action plan, the state may not bring an action against the eligible person or successor based on liability under subdivision 6615(a)(1) of this title, if that action relates to releases or threatened releases of hazardous materials that are described in the approved corrective action plan, as amended.

(d) Limitations on protection from liability.

(1) The protection from liability provided by subdivisions (c)(1) and (2) of this section and the forbearance from action provided by subdivision (c)(5) of this section does not extend to any of the following:

(A) Releases or threatened releases at the property that were not present at the time the eligible person submitted an application under this section, excluding those releases and threatened releases which result from the nonreckless performance of an approved site investigation work plan or an approved corrective action plan and which are abated, removed, remediated or monitored pursuant to an approved corrective action plan prior to the issuance of a certificate of completion. Wilful misconduct in the performance of an approved plan may constitute reckless performance of that plan.

(B) Releases or threatened releases at or from the property that were present at the property but were not included in information provided to the secretary, under this program, by the eligible person, or the successor, by the time the secretary issued a certificate of completion pursuant to subsection (k) of this section. Liability under this subdivision (d)(1)(B) shall be subject to the defenses created under subsection 6615(e) of this title.

(2) There shall be no protection from liability under subdivision (c)(1) or (2) of this section, and no forbearance from action provided by subdivision (c)(5) of this section, if the eligible person obtains a determination of eligibility under subsection (f) of this section, or any approval under this section, by fraud or intentional misrepresentation, by knowingly failing to disclose material information, or by providing false certifications pursuant to subdivision (e)(1)(F) of this section.

(3) There shall be no protection from liability under subdivision (c)(1) of this section for an eligible person, or forbearance from action provided by subdivision (c)(5) of this section, if that eligible person engages in activities that are inconsistent with or interfere with monitoring, investigation, abatement, removal or remediation activities, or conditions or restrictions in a certificate of completion. 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 engages in activities that are inconsistent with or interfere with monitoring, investigation, abatement, removal or remediation activities, or conditions or restrictions in a certificate of completion.

(4) There shall be no protection from liability under subdivision (c)(1) or (2) of this section if the eligible person, prior to issuance of the certificate of completion, transfers the property and the eligible person or successor does not complete the approved corrective action plan and obtain a certificate of completion.

(5) There shall be no protection from liability under subdivision (c)(1) or (2) of this section as to an eligible person or successor, or forbearance from action provided by subdivision (c)(5) of this section, if that eligible person or successor worsens an existing release or threatened release prior to the issuance of a certificate of completion, and that release or threatened release is not abated, removed, remediated or monitored pursuant to an approved corrective action plan prior to the issuance of a certificate of completion.

(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;

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

(C) 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 or threatened release;

(D) disposed of, or arranged for the disposal of hazardous materials at the property; or

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

(e) Application process.

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

(A) the information required by the program application;

(B) a nonrefundable application fee of $500.00;

(C) a preliminary environmental assessment of the property, including a legal description of the property; a description of the physical characteristics of the property; all information known to, or in the control of, the person concerning the operational history of the property, the nature and extent of releases and threatened releases at the property and the risks to human health and the environment from releases or threatened releases; and any other information requested by the secretary regarding the property;

(D) a description of the proposed redevelopment and use of the property;

(E) any information necessary for the secretary to make the findings required in subsection (f) of this section;

(F) a written report demonstrating the applicant has provided the public with notice and a reasonable opportunity to submit comments to the secretary on the information and material referenced in subdivisions (1)(C) and (D) of this subsection; and

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

(i) that each person who would benefit from any protection from liability pursuant to subdivision (c)(1) of this section has fully and accurately disclosed to the secretary all information currently known to the person, or in the person's possession or control, which relates to releases or threatened releases of hazardous materials at the property; and

(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;

(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; or

(V) generated hazardous materials that were disposed of at the property.

(2) Not more than 30 days after the secretary receives a complete application, the secretary shall determine if the person is eligible to participate in the program pursuant to subsection (f) of this section and shall notify the person in writing. The determination of eligibility is within the secretary's sole discretion and is final. Together with notice, the secretary shall inform the person, in general, of future requirements under this section that must be met by the eligible person, 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 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.

(3) An eligible person or successor may withdraw from the program at any time subject to the obligations of an eligible person or successor under subsection (j) of this section.

(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 the property 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 "innocent 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.

(i) A vacant, abandoned, or substantially underutilized property as defined by the secretary.

(ii) To be acquired by a municipality.

(D) The property is not ineligible pursuant to subdivision (f)(2) of this section.

(2) The following properties are ineligible:

(A) property that is listed on the national priorities list of superfund sites established under the federal Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. 9601 et seq., provided however, that if there are active ongoing negotiations with the secretary and the attorney general for a prospective purchaser agreement prior to April 20, 1995, a prospective purchaser agreement may be entered into with respect to that property;

(B) property for which a treatment, storage or disposal certification has been issued pursuant to section 6606 of this title, and at which a release of hazardous material has occurred which is subject to the corrective action requirements of the federal Resource, Conservation and Recovery Act, 42 U.S.C. 6901 et seq., as implemented by the state of Vermont;

(C) property at which the only known release or threatened release relates to an underground storage tank subject to 10 V.S.A. 1941.

(3) [Deleted.]

(g) Submittal and approval of site investigation.

(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 plan to 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, 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:

(A) to define the nature, source, degree and extent of the contamination;

(B) to define all possible pathways for contaminant migration;

(D) to define all relevant sensitive receptors, including but not limited to public or private water supplies, surface waters, wetlands, sensitive ecological areas, outdoor and indoor air, and enclosed spaces such as basements, sewers and utility corridors;

(E) to determine the risk of contamination to human health and the environment;

(F) to gather sufficient information to identify appropriate abatement, removal, remediation and monitoring activities;

(G) to gather sufficient information to provide a preliminary recommendation, with justification, for abatement, removal, remediation and monitoring activities.

(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.

(3) Together with notice of approval of a site investigation work 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. After the secretary approves the site investigation work plan, the eligible person or successor shall perform the site investigation in accordance with the approved work plan and all applicable law.

(4) After completion of the site investigation, the eligible person or successor shall submit a site investigation report which describes the information gathered and provides recommendations addressing the objectives identified in subdivisions (g)(1)(A) through (G) of this section. The secretary may approve the site investigation report, or may require revisions to the report, further site investigation work under an amended site investigation work plan, or both, prior to approval of the report.

(5) If the approved site investigation report concludes that no further investigation, abatement, removal, remediation or monitoring activities are required to adequately protect human health and the environment and to meet all applicable remediation standards, then the eligible person or successor may request a determination from the secretary that no additional investigation, abatement, removal, remediation, and monitoring activities are required.

(6) The secretary may determine that no abatement, removal, remediation or monitoring activities are required if the secretary determines all of the following:

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

(B) 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 meet the remediation standards.

(C) The eligible person, or successor, agrees in writing, which shall be binding upon any successor, to cooperate with, and to provide access to the secretary, and to any person liable under section 6615 of this title, acting subject to the approval of the secretary, for the purpose of taking any investigation, abatement, removal, remediation or monitoring activities at the property.

(h) Submittal and approval of corrective action plan.

(1) If the approved site investigation report concludes that abatement, removal, remediation, or monitoring activities are required to adequately protect human health and the environment and to meet all applicable cleanup standards, the eligible person or successor shall submit a corrective action plan, which shall clearly describe the basis and details of a proposed cleanup strategy to insure technical feasibility, effective engineering design, reasonable costs, protection of human health and the environment, and in compliance with the remediation standards. The corrective action plan shall include the following elements:

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

(B) A proposal for abatement, removal, and remediation of any release or threatened release and any condition which has led or could lead to a release or threatened release.

(C) A proposal for continuing monitoring of the property during and after the investigation, abatement, removal and remediation activities are completed.

(D) A description of applicable remediation standards.

(E) Plans for all of the following:

(i) Quality assurance.

(ii) Sampling and analysis.

(iii) Health and safety considerations.

(iv) Data management and recordkeeping.

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

(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 the insurance, bond or other surety requirements of these professionals as the secretary may determine, provided those requirements are not lower than the insurance requirements set forth in the standard state contract provisions. 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 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.

(3) The secretary may approve a corrective action plan for all, or a portion of, the releases or threatened releases at the property, if the secretary determines all of the following:

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

(B) 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.

(i) to comply with all rules and procedures of the secretary and to obtain all necessary permits, certifications and other required authorizations prior to beginning corrective action plan activities;

(ii) to cooperate with the secretary throughout the performance of investigation, abatement, removal, remediation and monitoring activities;

(iii) to cooperate with, and to provide access to, the secretary for the purpose of taking any investigation, abatement, removal, remediation or monitoring activities at the property; and

(iv) to cooperate with, and to provide access to any person liable under section 6615 of this section, acting subject to the approval of the secretary, for the purpose of taking any investigation, abatement, removal, remediation or monitoring activities at the property.

(4) 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 pose an unacceptable risk to human health and the environment and are in compliance with the remediation standards.

(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 clerk for the municipality 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) Except for 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 eligible persons, prior to becoming an owner or operator of an eligible property, the secretary may amend the approved plan by requiring adjustment provided the adjustments to the corrective action plan shall increase the costs of completion by no more than 30 percent of the estimated costs of the original corrective action plan. If the secretary determines that the corrective action plan and all adjustments to that plan have been substantially completed and that all fees and costs due under this section have been paid, the secretary shall issue a certificate of completion. The certificate of completion shall certify that the work is completed and, in addition to the requirements under subsection (k) of this section, may include conditions for operations and monitoring.

(C) 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 remediation and federal cleanup standards, the secretary may do any of the following:

(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.

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

(6) Upon approval of a corrective action plan, and any amendments to that plan, the secretary shall complete and present to the eligible person or successor a brief document titled, "Notice of approved corrective action plan for contaminated property." The document shall summarize the nature of the contamination identified on the property and the major components of the corrective action plan, and shall state that the property is subject to the "Redevelopment of Contaminated Property Program." If it is possible that future uses of the property may be restricted, the document shall state that fact. The document shall include any restrictions on future uses and shall signify where any approved corrective action plan may be reviewed in its entirety. The person receiving a notice of approved corrective action plan for contaminated property shall file it in the land records for the municipality in which the property is located.

(i) Performance of the corrective action plan.

(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 performance of a corrective action plan, except as otherwise provided in this section, the plan may be amended, as necessary to attain the cleanup levels established in the corrective action plan.

(2) If prior to the issuance of the certificate of completion, the eligible person or a successor, through the nonreckless 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 eligible person or successor 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 such release or threatened release and carry out the amended corrective action plan as approved by the secretary. Wilful misconduct in the performance of an approved plan may constitute reckless performance of that plan.

(j) Obligations.

(1) Upon depletion of the $5,000.00 fee paid pursuant to subdivision (g)(1) of this section, an eligible person or successor shall pay the department for additional costs of the secretary's review and oversight of the performance of the site investigation or corrective action plan. Unless another payment schedule has been approved by the secretary, these payments shall be made within 30 days of receipt from the secretary, of a quarterly bill which itemizes additional costs allowed under this section. If the fee is not depleted by the time of the issuance of a certificate of completion, the remainder shall be reimbursed to the eligible person or successor, as determined by the secretary.

(2) The eligible person or successor shall:

(A) perform all of the activities in the approved site investigation work plan and the approved corrective action plan, and all amendments to either plan;

(B) 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 eligible person or successor in performing the site investigation and corrective action plan;

(C) not sue the state for any claims or causes of action related to, or arising from, acts or omissions of the eligible person or successor in performing the site investigation and corrective action plan and shall not sue the state for reimbursement of funds expended, except for reimbursement of fees not expended by the state and of costs improperly required by and paid to the secretary by the eligible person or successor, or seek any other costs, damages or attorney's fees from the state with respect to any activities taken or costs incurred pursuant to this program;

(D) not sue the state for any claims or causes of action related to, or arising from hazardous material contamination at the property, except to the extent that the state may be liable under section 6615 of this title;

(E) provide to the state all documents and information relating to the performance of the investigation, abatement, removal, remediation and monitoring activities;

(F) disclose all information known to it, or in its possession or control, which relates to all releases or threatened releases of hazardous materials at the property or which might affect the design of, or the secretary's review of, the site investigation work plan and corrective action plan or the secretary's issuance of the certificate of completion; and

(G) cooperate with and provide access to the secretary, and to any person liable under section 6615 of this title, acting subject to the approval of the secretary, for the purpose of taking any investigation, abatement, removal, remediation or monitoring activities at the property.

(3) If an eligible person or successor withdraws from the program after commencement of the site investigation activities and prior to obtaining a certificate of completion, the eligible person or successor shall not leave the property in a condition that presents a greater threat to human health and the environment than existed before commencement of site investigation activities.

(4) An eligible person and any successor shall fulfill all agreements entered under this section.

(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.

(k) Certificate of completion.

(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 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.

(2) If the secretary determines, after a request from the eligible person or successor pursuant to subdivision (g)(5) of this section, that no further investigation, abatement, removal, remediation or monitoring activities are required, the secretary shall issue a certificate of completion, which shall include a description of any required land use restrictions.

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

(l) Program funding.

(1) Creation of fund. There is created a brownfields revitalization fund, which shall be a special fund created under subchapter 5 of chapter 7 of Title 32, to be administered by the secretary of the agency of commerce and community development to aid applicants in the redevelopment of contaminated properties program with the characterization, assessment and remediation of sites. Money received by the secretary of the agency of natural resources for assistance rendered in connection with the program shall be deposited in the redevelopment of contaminated properties account of the environmental contingency fund established in section 1283 of this title.

(2) Contents of fund. The fund shall be comprised of the following:

(A) such state or federal funds as may be appropriated by the general assembly; and

(B) any gifts, grants, or other contributions to the brownfields revitalization fund.

(3) Applications for assistance. Program applicants may apply to the secretary of commerce and community development for assistance from the brownfields revitalization fund in the form of a grant or loan to complete characterization, assessment or remediation of a site only after receiving approval of an appropriate work plan by the secretary of natural resources. Approval of work plans shall be contingent on participation in the Vermont redevelopment of contaminated properties program, unless the project under consideration is determined ineligible for the program, but is otherwise determined appropriate for funding under this subsection.

(4) Evaluation of application. In determining whether a grant or a loan from the brownfields revitalization fund is warranted, the secretary of commerce and community development, in consultation with the secretary of natural resources, shall consider:

(A) the extent to which the proposed project will facilitate the identification and reduction of threats to human health and the environment that may be associated with exposure to hazardous materials, pollutants or contaminants;

(B) the extent to which the proposed project will facilitate the use or reuse of existing infrastructure;

(D) the extent to which the proposed project will respond to the housing needs of a community or region;

(E) the level of participation by a local community in the process of making decisions relating to remediation and future use of the brownfields site;

(F) the extent to which a grant or a loan will meet the needs of a community that has an inability to draw on other sources of funding for environmental remediation and subsequent redevelopment of the area in which a brownfields site is located, because of the small population or low income of the community;

(G) the extent to which a grant or loan will facilitate the creation of, preservation of, or addition to a park, a greenway, undeveloped property, recreational property or other property used for nonprofit purposes;

(H) the extent to which the grant or loan will cause a more balanced geographic distribution of awards from the brownfields revitalization fund.

(5) Grants. Grants may be issued by the secretary of commerce and community development, with the approval of the secretary of natural resources, as follows:

(A) They may award an applicant a grant not to exceed $50,000.00 for the characterization and assessment of a site.

(B) They may award an applicant a grant not to exceed $200,000.00 for the remediation of a site.

(C) They may make a grant to assist an applicant in purchasing environmental insurance relating to the performance of the characterization, assessment, or remediation of a brownfields site in accordance with a corrective action plan approved by the secretary of natural resources.

(D) They may use a portion of the brownfields revitalization fund to develop a risk-sharing pool, an indemnity pool, or an insurance mechanism to provide financial assistance to applicants.

(E) All reports generated with the assistance of grants awarded under the brownfields revitalization fund, including site assessments, site investigations, feasibility studies, corrective action plans, and completion reports, shall be provided to the secretaries in hard copy and in electronic form.

(6) VEDA loans.

(A) Administration. For the purpose of this chapter, "VEDA" means the Vermont economic development authority, which is authorized to make loans on behalf of the state under this section after the secretary of commerce and community development, with the approval of the secretary of natural resources, has first determined an applicant eligible to apply to VEDA for a loan. These loans shall be issued and administered by VEDA, pursuant to this chapter, and VEDA's enabling authority, pursuant to chapter 12 of this title. The secretary of commerce and community development, with the approval of the secretary of natural resources and in consultation with the VEDA manager, shall annually determine the amount of the brownfields revitalization fund available to VEDA for loans under this section.

(B) Limitation. An applicant may use the proceeds of a loan from VEDA for characterization, assessment or remediation of a site. A loan may not be in an amount greater than $250,000.00.

(C) Repayments. Proceeds from repayment of loans shall be deposited in the brownfields revitalization fund and shall be available for additional grants or loans in accordance with this section.

(D) Loan conditions. VEDA may make loans to applicants on behalf of the state for one or more of the purposes set forth in this subsection. Each such loan shall be made subject to the following conditions:

(i) Repayment shall commence no later than one year after completion of the project for which loan funds have been applied.

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

(iii) Loans made to applicants by VEDA on behalf of the state under this section shall be made in accordance with the terms and conditions specified in a loan agreement to be executed by VEDA and the applicant. The loan agreement shall specify the terms and conditions of the loan and repayment by the applicant, as well as other terms and conditions determined necessary by VEDA and the secretary of natural resources or the secretary of commerce and community development.

(iv) Disbursement of loan proceeds shall be based on certification by the loan recipient demonstrating that costs for which reimbursement is requested have been incurred or paid by the recipient for activities under the plan approved by the secretary of natural resources. The recipient shall provide supporting evidence of payment upon the request of VEDA. Interim financing charges or short-term interest costs may constitute an allowable cost of a project for which a loan is extended. In the event short-term financing is unavailable to the applicant, VEDA may make interim loan disbursements to the applicant and its general contractor as co-payees upon submission of a certified request for payment, supported by actual invoices or other evidence satisfactory to VEDA, of costs incurred.

(v) VEDA may include such additional requirements in the loan agreement as it determines necessary for the proper administration of the brownfields revitalization fund, and which are consistent with applicable state and federal law and with other programs administered by VEDA under chapter 12 of this title.

(vi) In the event of default, any amounts owed upon the loan shall be considered a debt for the purposes of subdivision 5932(4) of Title 32. VEDA may recover such debt pursuant to the set-off debt collection remedy established under sections 5833 and 5934 of Title 32.

(E) Qualifications for eligibility. No loan to an applicant shall be made under this section until:

(i) the applicant has certified to VEDA that all state and federal permits and licenses necessary to undertake the project for which financing has been sought have been or will be obtained prior to VEDA disbursing funds under the loan; and

(ii) 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 that the project has priority for receipt of financial assistance.

(F) Loan priorities. The secretary of commerce and community development, in consultation with the secretary of natural resources, shall prepare at least annually a list of projects, ranked in priority order, that are eligible for financial assistance under this section. In establishing these priorities, the secretary of commerce and community development, at a minimum, shall consider the criteria set forth in subdivision (4) of this subsection, as well as the following:

(i) the severity of any health or environmental hazard to be abated;

(ii) the population to be served; and

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

(G) Contractual authority; reports.

(i) 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 agencies of the United States as may be necessary to obtain grants and awards in furtherance of the stated purposes of the brownfields revitalization fund created under this section, provided that any such grant or award has been approved pursuant to section 5 of Title 32.

(ii) Annually, by 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 energy, and the house committees on commerce and on natural resources setting out the balance of the fund created under this section, grant and loan awards made to date, funds anticipated to be made available in the coming year, information relating to brownfields remediation activities, including the number, location, and status of brownfields sites, and any other matters of interest.

(H) Liability against default. Under no circumstances shall the state or VEDA become responsible for owning or operating a project or for completing a corrective action plan when the 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 of natural resources.

(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.

(n) State plan for brownfields reclamation. The agency of natural resources and the agency of commerce and community development shall jointly develop a state plan for brownfields reclamation that shall include:

(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. (Added 1995, No. 44, § 1, eff. April 20, 1995; amended 1997, No. 80 (Adj. Sess.), §§ 1-11; No. 120 (Adj. Sess.), § 6; 2001, No. 142 (Adj. Sess.), §§ 254a, 254b, eff. June 21, 2002; 2003, No. 164 (Adj. Sess.), § 2, eff. June 12, 2004; 2005, No. 71, § 184a.)

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