Liability for Cleanup
closure for contaminated property cleanup typically comes
with a caveat, known as a “reopener” condition.
This condition allows a regulator to “reopen”
a project to require additional investigation or cleanup at
some future time. Under that scenario, liability for
environmental cleanup may never be completely resolved.
alternative to the standard approach is participation in Vermont’s
Environmental Liability Limitation Program. The Program
closes the reopener loop and resolves the potentially open-ended
cleanup issue. This is accomplished through the issuance
of a Certificate of Completion once cleanup goals are achieved.
The Certificate eliminates reopeners for: pre-existing
contamination that is discovered after the cleanup; pre-existing
contamination that was not regulated as a hazardous material
at the time of the cleanup; and the establishment of more
stringent cleanup standards post cleanup. In this manner,
the developer’s liability to the state for cleanup is
benefits conveyed by the Certificate attach to the property
and may be transferred to successor owners, enhancing the
property’s value and marketability.
addition to the above, the Certificate holder is protected
from contribution claims brought by other persons who may
be responsible for cleanup. Contribution claims
are not unusual in this arena due to the strict liability
scheme applicable to contaminated properties. This protection
provides the brownfields developer with an additional level
the state does not pursue enforcement action against a Program
participant who is actively engaged in environmental investigation
or cleanup. This enables the state and the developer
to work collaboratively on a mutually acceptable project schedule,
rather than having the state dictate the cleanup timeframe.
participants have access to the state’s Brownfields
Revitalization Fund. The Fund provides grants for environmental
investigation and cleanup, and low interest loans for environmental
cleanup. Additional information about the Fund is available
on the brownfields grants and
waste removed from a property enrolled in the Program is exempted
for the state’s hazardous waste transport tax.
This can represent a savings of as much as $60 per ton, depending
on the method of disposal.
addition, projects enrolled in the Program have an advantage
when applying for technical assistance grants under the Technical
Benefits for Prospective Purchasers
Persons who enter
the Program prior to purchasing a brownfield property are
eligible for additional benefits. Early involvement
promotes a better understanding of contaminant issues, leading
to informed decision making. This approach decreases
the likelihood of surprises that could negatively impact the
time and cost of addressing contamination.
One direct benefit is elimination of responsibility to pay for the Department's oversight costs. Another is the protection
offered by a cleanup cost increase limitation. Finally,
an early enrollee has the ability to obtain a Certificate
of Completion as soon as cleanup is substantially complete.
In summary, this Program allows developers
and the state to work collaboratively to achieve closure of
environmental cleanup issues. Access to technical and
financial resources enables developers to leverage their investment
and fill funding gaps in today’s tight credit markets.