2011 Vermont Code
Title 10 Conservation and Development
Chapter 159 WASTE MANAGEMENT
§ 6615 Liability

§ 6615. Liability

(a) Subject only to the defenses set forth in subsections (d) and (e) of this section:

(1) the owner or operator of a facility, or both;

(2) any person who at the time of release or threatened release of any hazardous material owned or operated any facility at which such hazardous materials were disposed of;

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous materials owned or possessed by such person, by any other person or entity, at any facility owned or operated by another person or entity and containing such hazardous materials; and

(4) any person who accepts or accepted any hazardous materials for transport to disposal or treatment facilities selected by such persons, from which there is a release, or a threatened release of hazardous materials shall be liable for:

(A) abating such release or threatened release; and

(B) costs of investigation, removal and remedial actions incurred by the state which are necessary to protect the public health or the environment.

(b) In the event that the responsible person or persons fails to act in a timely manner to take the necessary removal and remedial actions, the secretary may take such actions, order the responsible person or persons to act, or seek a court order requiring such actions. Any responsible person who fails to comply with such a court order shall be liable in an amount equal to three times the cost of such removal. Funds recovered under this section shall be deposited in the environmental contingency fund established under section 1283 of this title.

(c) In any suit to enforce claims of the state under this section, it is not necessary for the state to plead or prove negligence in any form or manner on the part of the person specified in subsection (a) of this section. The state need only plead and prove the fact of the release or threatened release and that the person in question was as specified in subsection (a), or that the release or threatened release occurred at or involved any real property, structure, equipment or conveyance under the control of that person. Any person who has released hazardous material as specified under subsection (a), or is in any way responsible for any hazardous materials which the agency has removed or is removing pursuant to subsection 1283(b) of this title shall be strictly liable, jointly and severally, without regard to fault, for all cleanup, removal and remedial costs. Where hazardous materials released by one person are or may be mixed with those released by another, the strict liability e

stablished under this section shall be with respect to the cleanup, removal and remedial costs of all the materials involved; provided however, it shall be a defense to joint and several liability under this section if the responsible person establishes by a preponderance of the evidence that he or she is responsible for only a certain portion of the costs of the cleanup, removal and remedial action, considering such factors as the volume and toxicity of the material contributed by the person to the release, then that person's liability shall be limited to the amount so established. Operators of municipal landfills or persons operating landfills on behalf of municipalities shall not be jointly and severally liable under this section to the extent that they are acting as landfill operator. Generators of household waste, as defined by rule of the secretary, shall not be liable under this section.

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

(A) an act of God;

(B) an act of war;

(C) an act or omission of a third party other than an employee or agent of the defendant, or other than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant. If the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail, for purposes of this section, there shall be considered to be no contractual relationship at all. This subdivision (d)(1)(C) shall only serve as a defense if the defendant establishes by a preponderance of the evidence:

(i) that the defendant exercised due care with respect to the hazardous material concerned, taking into consideration the characteristics of that hazardous material, in light of all relevant facts and circumstances; and

(ii) that the defendant took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from those acts or omissions; or

(D) any combination of the above.

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

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

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

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

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

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

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

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

(A) The property was acquired by virtue of its function as sovereign through bankruptcy, tax delinquency, abandonment, or other similar circumstances.

(B) The municipality did not cause or contribute to the contamination of the property.

(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 subchapter 3 of this chapter.

(e) Any person who is the owner or operator of a facility where a release or threatened release existed at the time that person became owner or operator shall be liable unless he or she can establish by a preponderance of the evidence that after making diligent and appropriate investigation of the facility, he or she had no knowledge or reason to know that said release or threatened release was located on the facility.

(f) Except insofar as expressly provided in this section, nothing in this chapter shall be deemed to preclude the pursuit of any other civil or injunctive remedy by any person. The remedies in this chapter are in addition to those provided by existing statutory or common law.

(g)(1) A secured lender or a fiduciary, as that term is defined in 14 V.S.A. { 204(b), shall not, absent other circumstances resulting in liability under this section, be liable as either an owner or operator under this section merely because of any one or any combination of more than one of the following:

(A) in the case of a secured lender, holding indicia of ownership in a facility primarily to assure the repayment of a financial obligation;

(B) in the case of a fiduciary, acquiring ownership status when that status arises by law upon appointment or requiring or conducting any activity which is necessary to carry out the fiduciary's duties and falls within the scope of the fiduciary's authority;

(C) requiring or conducting financial or environmental assessments of a facility or any portion thereof;

(D) monitoring the operations conducted at a facility;

(E) requiring, through financial documents or otherwise, the management of hazardous materials at a facility in compliance with the requirements of this chapter and the regulations promulgated thereunder;

(F) giving advice, information, guidance, or direction concerning the general business and financial aspects of a borrower's operations;

(G) providing general information concerning federal, state or local laws governing the transportation, storage, treatment and disposal of hazardous waste or hazardous materials;

(H) engaging in financial workouts, restructuring, or refinancing of a borrower's obligations;

(I) extending or denying credit to a person owning or in lawful possession of a facility;

(J) in an emergency, requiring or undertaking activities to prevent exposure of persons to hazardous materials or to contain a release; or

(K) requiring or conducting abatement, investigation, remediation or removal activities in response to a release or threatened release, provided that:

(i) prior notice of intent to do any such activity is given to the secretary in writing, and, unless previously waived in writing by the secretary, no such activity is undertaken for 30 days after receipt of such notice by the secretary;

(ii) a workplan is prepared by a qualified consultant prior to the commencement of any such activity;

(iii) if the secretary, within 30 days of receiving notice as provided in subdivision (i) of this subdivision (K), elects to undertake a workplan review and gives written notice to the secured lender or fiduciary of such election, no such activity is undertaken without prior workplan approval by the secretary;

(iv) appropriate investigation is undertaken prior to any abatement, remediation, or removal activity;

(v) regular progress reports and a final report are produced during the course of any such activity;

(vi) all plans, reports, observations, data, and other information related to the activity are preserved for a period of 10 years and, except for privileged materials, produced to the secretary upon request;

(vii) persons likely to be at or near the facility are not exposed to unacceptable health risk; and

(viii) such activity complies with all rules, procedures and orders of the secretary.

(2) There shall be no protection from liability for a secured lender or a fiduciary under subsections (g) and (h) of this section if the secured lender or fiduciary causes, worsens or contributes to a release or threat of release of hazardous material. A secured lender or fiduciary who relies on subdivision (g)(1)(K) of this section, or an agreement with the secretary entered into under subsection (h) of this section shall bear the burden of proving compliance with this subdivision.

(h)(1) Subject to the provisions of this subsection, the secretary may enter into an agreement with a secured lender or a fiduciary regarding a facility from which there is a release or threat of release of hazardous materials. Upon entering into an agreement with the secretary, a secured lender or fiduciary, to the extent allowed by the agreement and in compliance with the terms and conditions of the agreement, may:

(A) in the case of a secured lender, take possession, foreclose or otherwise take full title to the facility; and

(B) undertake other activities at the facility in addition to those of subdivisions (g)(1)(A)-(K) of this section, including use of the facility and new development.

(2) Such an agreement may be entered into only when the secretary has determined, in the secretary's sole discretion, that there exists a release or threat of release, that there will be a substantial benefit to the public health or the environment that would not otherwise be realized and that the proposed activity will not cause, worsen or contribute to a release or threat of release of hazardous materials at the facility or expose persons likely to be at or near the facility to unacceptable health risk. Prior to entering into an agreement which provides for any abatement, investigation, remediation, or removal activities to be taken by a secured lender or fiduciary in response to a release or threatened release, the secretary shall cause notice to be published in a local newspaper generally circulated in the area where the facility is located. The notice shall set forth the abatement, investigation, remediation, and removal activities proposed, shall state that the secretary

is considering entering into an agreement providing for such activities, and shall request public comment on the proposed activities within 15 days after publication. The decision of the secretary as to whether an agreement should be entered into and the terms and conditions of any agreement shall be final.

(3) Such an agreement, if previously approved by the attorney general, may provide for the payment, in whole or in part, of past or future costs described in subdivision (a)(4)(B) of this section and may limit, in whole or in part, the secured lender's or the fiduciary's liability under this section.

(4) A proposal by a secured lender or fiduciary to enter into such an agreement shall be accompanied by a fee of $1,000.00. If the secretary's costs related to the proposal exceed the fee paid, then any agreement shall provide for the secured lender or fiduciary to reimburse the secretary for the additional costs incurred. The fee and any excess costs paid to the secretary under this subsection shall be deposited into the contingency fund established under subsection 1283(a) of this title.

(5) If the secured lender or fiduciary enters into an agreement with the secretary, complies with the agreement and does not cause, worsen or contribute to a release or threat of release of a hazardous material, the maximum liability of such person under this section to the state for costs or injunctive relief shall be as provided in the agreement or, in the absence of such a provision, the fair market value of the property at the time of the agreement, estimated as if there were no release or threatened release of any hazardous materials, less any costs reasonably incurred by the person for any abatement, investigation, remediation or removal activity undertaken in compliance with subdivision (g)(1)(K) of this section or incurred in compliance with the agreement.

(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, a person who has obtained a certificate of completion pursuant to 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 an

y 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. (Added 1985, No. 70, { 4, eff. May 20, 1985; amended 1993, No. 29, §§ 3, 4, eff. May 26, 1993; 1995, No. 44, { 2, eff. April 20, 1995; 1997, No. 80 (Adj. Sess.), { 12; 2003, No. 164 (Adj. Sess.), { 1, eff. June 12, 2004; 2007, No. 147 (Adj. Sess.), { 8.)