Senate Judiciary favors S.29 affirmative‑defense language for commercial salt applicators, urges BMP rulemaking

The Senate Judiciary committee on May 7 discussed competing liability and program designs in two bills intended to reduce chloride pollution from deicing salt and recommended sending the affirmative‑defense language in S.29 to Senator Watson’s committee while pressing for best management practices to be adopted by rule.

Committee members and witnesses said both S.29 and H.86 create a voluntary chloride‑reduction program in Title 10, Chapter 47 (water quality law) that would include training and certification for commercial salt applicators, two‑year certification terms and a role for the Agency of Natural Resources (ANR) to develop best management practices (BMPs). The bills diverge mainly on how liability for negligence would be handled and how ANR would adopt BMPs.

The key legal difference discussed was who carries the initial burden in negligence cases. Under H.86, a limitation on liability places the initial burden on the plaintiff to show that the limitation does not apply; under S.29 the defendant bears the burden of pleading and proving an affirmative defense that they were certified and followed the BMPs. As committee counsel explained, “When there’s a limitation on…