Lifetime Citizen Portal Access — AI Briefings, Alerts & Unlimited Follows
Senate Judiciary favors S.29 affirmative‑defense language for commercial salt applicators, urges BMP rulemaking
Loading...
Summary
The Senate Judiciary committee discussed competing liability approaches in two bills addressing chloride runoff from deicing salt. Members coalesced around recommending S.29’s affirmative‑defense framework while asking that best management practices be adopted through formal rulemaking like H.86 proposes.
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 liability, the person who sued the defendant basically just says, I… did the training,” while an affirmative defense requires the applicator to demonstrate compliance to avoid liability.
Witnesses from the environmental and legal community largely supported the S.29 affirmative‑defense approach as a way to “codify the common law,” create clear BMPs and give defendants a defined framework to present at trial. Adam Newgrass of Newgrass Cooper and the Vermont Association for Justice told the committee, “This version codifies the common law and strikes that balance well.” Jared Carpenter (commenter) described the S.29 language as “a good compromise” that would encourage participation while providing some liability protection.
Members also discussed procedural differences for ANR to adopt BMPs. H.86 requires adoption by rule with a July 1, 2026 target, providing a public rulemaking process and formal opportunities for stakeholder input. S.29 allows ANR more discretion to adopt BMPs either by rule or by agency procedure; committee discussion favored the transparency of rulemaking. As one senator summarized the committee conclusion: “we’re recommending the affirmative defense, and we are recommending keeping the rulemaking strictly rulemaking, that’s expressed in H.86.”
Other substantive distinctions noted in the hearing: S.29 originally required ANR to determine annual salt imports into the state, including municipal and private use, while the house version (H.86) replaced that with a less onerous statewide estimate of salt use; S.29 included a Senate Natural Resources Committee proposal to require covering state, municipal and private salt/sand storage within time frames tied to proximity to water (for example, storage within 100 yards of surface water), a mandate not present in H.86, which instead directs an inventory and study of storage and funding needs.
Both bills authorize a fee to fund the program and include a funded implementation element: a permanent classified ANR position with an approximate $150,000 salary plus a $250,000 contract or grant to an external organization to stand up the program. S.29 specifies recordkeeping requirements (records retained for three years) tied to asserting an affirmative defense; both bills reference monitoring/reporting obligations, though witnesses said statutory reporting in H.86 is stronger than in some drafts of S.29.
Committee members and witnesses repeatedly emphasized that neither bill eliminates the plaintiff’s ultimate ability to sue; gross negligence or reckless disregard remains a possible avenue to overcome either protection. Legal counsel noted that jury instructions would be required to explain any statutory defense, and that litigation could continue regardless of which model the legislature adopts.
The discussion included testimony about environmental and public‑health harms from elevated salinity in fresh water—impacts on infrastructure corrosion, drinking‑water quality, private wells and aquatic life—and witnesses urged stronger monitoring language so the state can evaluate whether the program reduces chloride loads.
Committee members said they intend to relay the committee’s preference (S.29 affirmative‑defense language plus BMP adoption by rule) to Senator Watson’s committee and to the Senate Natural Resources Committee for consideration of the program design, storage‑covering provisions and funding. The committee did not take a formal roll‑call vote in the hearing record; participants described the outcome as a working recommendation and consensus in the room.
