Senate, advocates and industry reach compromise on salt program; affirmative-defense approach would reward certified applicators

Senators, agency staff and stakeholders said on Thursday they reached a working compromise on a package to reduce road-salt impacts that would create a voluntary Agency of Natural Resources (ANR) certification and training program, require BMPs by rule, and give certified commercial applicators an affirmative defense in civil claims when they meet the standards.

"What we landed on eventually, was the affirmative defense approach, which is which is a carrot ... a solid compromise," the Senate Judiciary chair told the committee, summarizing yesterday's agreement and the compromise between business and environmental interests.

Program basics and standard-setting: Under the draft the committee reviewed, ANR would establish a voluntary education, training and certification program for commercial salt applicators and offer an approved winter-maintenance curriculum for municipal road crews. Best management practices (BMPs) for application and storage would be adopted by rule under the Administrative Procedure Act, not by internal procedure, so stakeholders would have an opportunity to participate in rulemaking.

Affirmative defense versus limited liability: The committee discussed two liability approaches. Earlier proposals sought broader limited-liability protection for certified applicators; after negotiations the package uses an affirmative-defense model. The draft says a certified commercial applicator (or owner, manager, municipal applicator who is certified) "shall have an affirmative defense against liability for damages resulting from a hazard caused by snow or ice" if the applicator shows they were certified, followed the BMPs, and that any failure to remove a hazard resulted from following the BMPs. The defense does not apply to conduct rising to gross negligence or reckless disregard, and certified applicators must retain winter-maintenance records for three years.

Reporting, outreach and storage inventory: The bill would require ANR to produce an annual summary estimate of total winter salt use and to establish methods for estimating application by certified commercial applicators. ANR would also conduct outreach and education to applicators and the public about alternatives and best practices. Instead of an immediate statutory requirement to cover salt storage sites, the compromise directs ANR to inventory salt and sand storage facilities (municipal and state), estimate how many are covered, and estimate costs to cover or relocate facilities; the inventory is intended to inform future funding and any cover mandates.

Funding and implementation questions: ANR staff told the committee the program needs a coordinator and resources for outreach, rulemaking and certification. Committee members debated whether to make the program contingent on an appropriation or to include a position and funding in statute; some members favored statutory language that makes clear ANR is not required to establish the program unless a position and appropriation are provided.

Stakeholder views: Industry and business groups welcomed clarity on standards and the affirmative-defense approach. "This bill codifies the piece of common law, affirmative defense that provides business clarity. It's a good step forward," said Adam McCrassy of the McCrassy Group, representing plaintiffs' counsel and emphasizing the importance of definable standards of care in tort law.

Next steps: Committee staff said they will refine language to ensure the voluntary program, certification fees, and any administrative position are workable and will coordinate with appropriations and ANR on funding options. Members also asked ANR to return with the inventory results and cost estimates to inform any future cover requirements.