§ 6615. Liability
(a) Subject only to the defenses set forth in subsections (d) and (e) of this section,
the following persons shall be liable for abating a release or threatened release
of hazardous material and the costs of investigation, removal, and remedial actions
incurred by the State that are necessary to protect the public health or the environment:
(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;
(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; and
(5) any person who manufactured for commercial sale a hazardous material and who knew
or should have known that the material presented a threat of harm to human health
or the natural 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) of this section, 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) of this section or is in any way responsible for any
hazardous materials that the Agency of Natural Resources 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 established
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 resulting damages 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.
(D) Any combination of subdivisions (A)-(C) of this subdivision (1).
(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; and
(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 subdivision (a)(1) of this section as an
owner, provided that the municipality can show all the following:
(A) [Repealed.]
(B) The municipality did not cause, contribute to, or worsen a release or threatened release
of a hazardous material at the property.
(C)(i) The municipality has entered into an agreement with the Secretary, prior to the acquisition
of the property, requiring the municipality to conduct a site investigation with respect
to any release or threatened release of a hazardous material and an agreement for
the municipality’s marketing of the property acquired.
(ii) The Secretary shall consult with the Secretary of Commerce and Community Development
on the plan related to the marketing of the property.
(iii) The municipality may assert a defense to liability only after implementing a site
investigation at the property acquired and taking reasonable steps defined by the
agreement with the Secretary to market the property.
(iv) In developing an agreement regarding site investigation, the Secretary shall consider
the degree and extent of the known releases of hazardous materials at the property,
the financial ability of the municipality, and the availability of State and federal
funding when determining what is required by the agreement for the investigation of
the site.
(4) A regional development corporation or regional planning commission shall not be liable
under subdivision (a)(1) of this section as an owner, provided that the regional development
corporation or regional planning commission can show all the following:
(A) The regional development corporation or regional planning commission did not cause,
contribute to, or worsen a release or threat of release at the property.
(B) The regional development corporation received, in the 12 months preceding the acquisition
of the property, a performance contract for economic development pursuant to 24 V.S.A. chapter 76. The requirement of this subdivision (d)(4)(B) shall not apply to regional planning
commissions.
(C)(i) The regional development corporation or regional planning commission has entered into
an agreement with the Secretary, prior to the acquisition of the property, requiring
the regional development corporation or regional planning commission to conduct a
site investigation with respect to any release or threatened release of a hazardous
material and an agreement for the regional development corporation’s or regional planning
commission’s marketing of the property acquired.
(ii) The Secretary shall consult with the Secretary of Commerce and Community Development
on the plan related to the marketing of the property.
(iii) The regional development corporation or regional planning commission may assert a
defense to liability only after implementing a site investigation at the property
acquired and taking reasonable steps defined by the agreement to market the property.
(iv) In developing an agreement regarding site investigation, the Secretary shall consider
the degree and extent of the known releases of hazardous materials at the property,
the financial ability of the regional development corporation or the regional planning
commission, and the availability of State and federal funding when determining what
is required by the agreement for the investigation of the site.
(5) A person shall not be liable under subdivision (a)(5) of this section, provided that
the person demonstrates that he or she provided an adequate warning of the harm posed
by the hazardous material known or that should have been known at the time the hazardous
material was manufactured.
(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, based upon a diligent
and appropriate investigation of the facility in conformance with the requirements
of section 6615a of this title, that he or she had no knowledge or reason to know that the 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 the term fiduciary is defined in 14 V.S.A. § 204(2), 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 ensure 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 that 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 rules adopted
under this chapter;
(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;
(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; or
(L) foreclosing on the facility and after foreclosure selling; winding up operations;
undertaking an investigation or corrective action under the direction of the State
or federal government with respect to the facility; or taking any other measure to
preserve, protect, or prepare the facility prior to sale or disposition, provided
that:
(i) a secured lender shall be liable as an operator if the secured lender participated
in the management of the facility; and
(ii) a secured lender shall be liable as an owner if during the course of any transaction
of the property, the secured lender fails to disclose any known release or threat
of release.
(2) There shall be no protection from liability for a secured lender or a fiduciary under
this subsection 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 (1)(K) of this subsection shall bear the burden of proving
compliance with this subdivision.
(h) [Repealed.]
(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, except that a person
who is solely liable pursuant to subdivision (a)(5) of this section shall not be able
to implead or to sue a person pursuant to this subsection. 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 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. (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; 2013, No. 55, § 12; 2015, No. 97 (Adj. Sess.), § 39; 2017, No. 74, § 19; 2019, No. 131 (Adj. Sess.), § 34; 2021, No. 93 (Adj. Sess.), § 2, eff. July 1, 2022; 2021, No. 170 (Adj. Sess.), § 8, eff. July 1, 2022; 2023, No. 6, § 82, eff. July 1, 2023.)