2023 Vermont Statutes › Title 10 - Conservation and Development › Chapter 159 - Waste Management › § 6615d. Natural resource damages; liability; rulemaking

§ 6615d. Natural resource damages; liability; rulemaking
(a) Definitions. As used in this section:
(1) “Acquisition of or acquiring the equivalent or replacement” means the substitution for an injured resource with a resource that provides the same or substantially similar services, when the substitution:
(A) is in addition to a substitution made or anticipated as part of a response action; and
(B) exceeds the level of response action determined appropriate for the site under section 6615b of this title.
(2) “Baseline condition” means the condition or conditions that would have existed at the area of assessed damages had the release of hazardous material at or from the facility in question not occurred.
(3) “Damages” means the amount of money sought by the Secretary for the injury, destruction, or loss of a natural resource.
(4) “Destruction” means the total and irreversible loss of natural resources.
(5) “Injury” means a measurable adverse long-term or short-term change in the chemical or physical quality or viability of a natural resource resulting either directly or indirectly from exposure to a release of hazardous material or exposure to a product of reactions from a release of hazardous materials.
(6) “Loss” means a measurable adverse reduction of a chemical or physical quality or viability of a natural resource.
(7) “Natural resource damage assessment” means the process of collecting, compiling, and analyzing information, statistics, or data through prescribed methodologies to determine the damages for injuries to a natural resource.
(8) “Natural resources” means fish, wildlife, biota, air, surface water, groundwater, wetlands, drinking water supplies, or State-held public lands.
(9) “Restoring,” “restoration,” “rehabilitating,” or “rehabilitation” means actions undertaken to return an injured natural resource to its baseline condition, as measured in terms of the injured resource’s physical, chemical, or biological properties or the services it had previously provided, when such actions are in addition to a response action under section 6615 of this title.
(10) “Services” means the physical and biological functions performed by the natural resource, including the human uses of those functions.
(b) Authorization. The Secretary may assess damages against any person found to be liable under section 6615 of this title for a release of hazardous material for injury to, destruction of, or loss of a natural resource from the release. The measure of damages that may be assessed for natural resource damages shall include the cost of restoring, rehabilitating, replacing, or acquiring the equivalent of the injured, damaged, or destroyed natural resources or the services the natural resources provided and any reasonable costs of the Secretary in conducting a natural resource damage assessment. The Secretary also may seek compensation for the interim injury to or loss of a natural resource pending recovery of services to the baseline condition of the natural resource.
(c) Rulemaking; methodology. The Secretary shall adopt rules to implement the requirements of this section, including a methodology by which the Secretary shall assess and value natural resource damages. The rules shall include:
(1) requirements or acceptable standards for the preassessment of natural resource damages, including requirements for:
(A) notification of the Secretary, natural resource trustees, or other necessary persons of potential damages to natural resources under investigation for the coordination of the assessments, investigations, and planning;
(B) authorized emergency response to natural resource damages when immediate action to avoid destruction of a natural resource is necessary or a situation in which there is a similar need for emergency action, and where the potentially liable party under section 6615 of this title fails to take emergency response actions requested by the Secretary; and
(C) sampling or screening of the potentially injured natural resource;
(2) requirements for a natural resource damages assessment plan to ensure that the natural resource damage assessment is performed in a planned and systematic manner, including:
(A) the categories of reasonable and necessary costs that may be incurred as part of the assessment plan;
(B) the methodologies for identifying and screening restoration alternatives and their costs;
(C) the types of reasonably reliable assessment procedures available to the Secretary, when the available procedures are authorized, and the requirements of the available procedures;
(D) how injury or loss shall be determined and how injury or loss is quantified; and
(E) how damages are measured in terms of the cost of:
(i) the restoration or rehabilitation of the injured natural resources to a condition where they can provide the level of services available at baseline condition; or
(ii) the replacement or acquisition of equivalent natural resources or services;
(3) requirements for post-natural resource damages assessment, including:
(A) the documentation that the Secretary shall produce to complete the assessment;
(B) how the Secretary shall seek recovery; and
(C) when and whether the Secretary shall require a restoration plan; and
(4) other requirements deemed necessary by the Secretary for implementation of the rules.
(d) Exceptions. The Secretary shall not seek to recover natural resource damages under this section when:
(1) the person liable for the release demonstrates that the nature and degree of the destruction, injury, or loss to the natural resources were identified in an application for, renewal of, review of, or other environmental assessment of a permit, certification, license, or other required authorization;
(2) the Secretary authorized the nature and degree of the destruction, injury, or loss to the natural resource in an issued permit, certification, license, or other authorization; and
(3) the person liable for the release was operating within the terms of its permit, certification, license, or other authorization.
(e) Limitations. The natural resource damages authorized under this section and the requirements for assessment under the rules authorized by this section shall not limit the authority of the Secretary of Natural Resources to seek or recover natural resource damages under other State law, federal law, or common law.
(f) Limit on double recovery. The Secretary or other natural resource trustee shall not recover natural resource damages under this section for the costs of damage assessment or restoration, rehabilitation, or acquisition of equivalent resources or services recovered by the Secretary or the other trustee under other authority of this chapter or other law for the same release of hazardous material and the same natural resource.
(g) Actions for natural resource damages. No action may be commenced for natural resource damages under this chapter unless that action is commenced within six years after the date of the discovery of the loss and its connection with the release of hazardous material in question.
(h) Limit on preenactment damages. There shall be no recovery under this section for natural resource damages that occurred wholly before the adoption of rules under subsection (c) of this section.
(i) Use of funds. Damages recovered as natural resource damages shall be deposited in the Environmental Contingency Fund established pursuant to section 1283 of this title. (Added 2015, No. 154 (Adj. Sess.), § 8, eff. June 1, 2016.)