Code of Vermont Rules › Agency 12 - AGENCY OF NATURAL RESOURCES › Sub-Agency 032 - WASTE MANAGEMENT DIVISION › Chapter 009 - NATURAL RESOURCE DAMAGE ASSESSMENT AND RESTORATION RULE › Section 12 032 009 - NATURAL RESOURCE DAMAGE ASSESSMENT AND RESTORATION RULE

Current through June,
				2024
SUBCHAPTER 1
				GENERAL PROVISIONS
101 Authority
These Rules are adopted by the Secretary of the Agency of
				  Natural Resources pursuant to the authority granted by
				  10 V.S.A.
				  §
												6615d(c). The
				  recovery of natural resource damages authorized under these Rules shall not
				  limit the authority of the Secretary to seek or recover natural resource
				  damages under other State law, federal law, or common law.
102 Purpose
The purpose of these Rules is to make the environment and
				  public whole for injuries to natural resources and loss of services resulting
				  from the release of hazardous material. To fulfill this purpose, these Rules
				  establish processes to assess injuries to natural resources, to assess
				  alternatives for restoring injured natural resources and services lost, and to
				  pursue implementation and funding of a restoration plan by potentially
				  responsible parties. These Rules also provide opportunities for soliciting
				  input from the public and other interested parties in conducting a damage
				  assessment and selecting restoration alternatives.
103 Applicability
These Rules apply to any party liable for a release of
				  hazardous materials pursuant to
				  10 V.S.A. §
												6615. The Secretary and any other natural
				  resource trustee shall not seek to recover natural resource damages under these
				  Rules for the costs of damage assessment or restoration, rehabilitation, or
				  acquisition of equivalent resources or services recovered by the Secretary or
				  other trustee under authority of 10 V.S.A. chapter 159 or other law for the
				  same release of hazardous material and the same natural resource injuries or
				  services lost.
104
				Compliance with Other Laws
While taking any actions pursuant to these Rules, the
				  Secretary shall ensure compliance with any other applicable state, federal, or
				  local laws.
105
				Severability
The provisions of these Rules shall be severable. If any
				  provision of these Rules or any application of these Rules to any person or
				  circumstance is deemed to be invalid by a court of competent jurisdiction, the
				  invalidity shall not affect other provisions or applications that can be given
				  effect without the invalid provision or application.
106 Coordination
(a) Natural Resource Trustees.
(1) Designation of trustees. If the trust
				resources of multiple Agency departments are impacted, injured, or likely to be
				injured by a release of hazardous materials, the Secretary may designate a
				trustee representative and an alternative trustee representative from each
				department, as appropriate. The Secretary may invite other agencies,
				departments, or divisions of state or local government with trust resources
				impacted, injured, or likely to be injured by a release of hazardous materials
				to participate in a natural resource damage assessment and restoration planning
				process, as appropriate
(2)
				Coordination with response activities. Trustees shall act jointly under these
				Rules to ensure that full restoration is achieved without double recovery of
				damages. Trustees shall coordinate their activities with concurrent response
				and remediation activities conducted by the Secretary and any other emergency
				response entities.
(b)
				Potentially Responsible Parties (PRPs).
(1)
				Notice. The Secretary shall notify a PRP of the Secretary's intent to conduct a
				natural resource damage assessment. The Notice shall be provided in accordance
				with § 36-405.
(2) Scope of
				Participation; Factors. The amount of participation of a PRP may include
				conducting the natural damage assessment and any other activity required by the
				Secretary in accordance with these Rules. The scope of participation of a PRP
				shall be determined by the Secretary based on the following considerations,
				where applicable:
(A) Whether the PRP has
				been identified;
(B) The
				willingness or ability of the PRP to participate in the damage
				assessment;
(C) The willingness of
				the PRP to fund damage assessment activities;
(D) The willingness and ability of the PRP to
				conduct damage assessment activities in a technically sound and timely manner
				and to be bound by the results of jointly agreed-upon studies;
(E) The degree of cooperation of the PRP in
				the response to the releases; and
(F) The actions of the PRP in prior
				assessments, corrective action, or restoration efforts.
(3) Coordination with Secretary. Based on the
				Secretary's determination under subdivision (b)(2) of this section, an action
				taken by the Secretary under these Rules may be conducted in coordination with
				the PRP or by the PRP at the direction of the Secretary. Pursuant to §
				36-108 of this Subchapter, the Secretary may enter into a binding agreement
				with a PRP to facilitate coordination of activities conducted under these Rules
				and resolve any disputes during the natural resource damage assessment and
				restoration planning process.
(c) Public. The Secretary shall provide an
				opportunity for public notification in decisions to conduct early restoration
				actions under § 36-402, and an opportunity for public involvement in
				decisions to conduct damage assessment and restoration planning under §
				36-405, and in evaluation of restoration alternatives proposed under §
				36-604 in accordance with the provisions for public notice set forth in those
				sections. Additionally, the Secretary may provide opportunities for public
				involvement at any other time if the Secretary determines that such involvement
				will assist and inform the Secretary's decision-making or avoid delays in
				implementing restoration of injured natural resources and services.
107 Coordination Agreements
At any time after a release of hazardous materials, the
				  Secretary may enter into a binding agreement with a PRP or multiple PRPs to
				  facilitate implementation and coordination of activities conducted pursuant to
				  these Rules.