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BRELLA Liability Protection

Limiting Liability for Cleanup

Regulatory 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.

An 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 limited.

The benefits conveyed by the Certificate attach to the property and may be transferred to successor owners, enhancing the property’s value and marketability.

In 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 of comfort.

Finally, the state does not pursue enforcement action against a BRELLA 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.