House Judiciary reviews H.86: rulemaking for salt best practices, limited liability for certified applicators

The House Judiciary Committee heard a presentation on H.86 (draft 4.3) on April 17, 2025, a bill that would require the Agency of Natural Resources (ANR) to adopt best management practices (BMPs) for application of road- and sidewalk‑deicing salts by rule and would create a limited-liability protection for commercial and municipal salt applicators who are certified and who follow those BMPs.

The bill requires ANR, after consultation with the Agency of Transportation (AOT) and other states, to adopt BMPs by rule on or before July 1, 2026, and ties a limited-liability protection to certification and implementation: the draft ties liability protection to January 1, 2027, unless the committee changes that timing. The draft also directs ANR to offer voluntary training and certification for commercial salt applicators, to establish record-keeping and reporting (including an annual summary of salt use), and to provide a model form for commercial applicators.

Why it matters: Committee members and witnesses framed H.86 as an effort to reduce chloride loading to surface waters before more rivers and lakes in Vermont are placed under Total Maximum Daily Load (TMDL) obligations. Committee members raised questions about whether rulemaking and legislative review (LCAR) provide enough oversight of the BMPs, how the liability protection would operate in practice, and who would pay for administering the program.

Legislative counsel Mike O'Grady, who walked the committee through draft 4.3, said the bill was restructured to move the BMP substance into a new subchapter of title 10 and to make rulemaking the vehicle for setting BMP details. "APA rulemaking is an open process. It requires public review and comment, requires public hearing, it requires agency response to public comment, and it requires an LCAR review," O'Grady said, noting that rulemaking typically takes about eight months and that the fastest practical timeline is roughly five and a half months.

O'Grady summarized the principal program elements in the draft: BMPs to minimize salt use while maintaining pedestrian and motor-vehicle safety; standards for when and how salt and salt alternatives are applied; consideration of equipment for calibrating or metering application; requirements for certification and testing of applicators; record keeping by certified commercial applicators (type and rate of application, dates of treatment, weather conditions for each event); an annual summary of winter salt use submitted to ANR; and an explicit exclusion for transportation infrastructure projects owned by the state in some program provisions.

The draft provides that applicators who complete the ANR certification and follow the BMPs would receive a limited-liability protection for damages arising from hazards on property they own, occupy or maintain when those hazards are caused solely by snow or ice and any failure or delay in removing the hazard is the result of implementing the BMPs. Liability would not be limited where damages are caused by gross negligence or reckless disregard, and the statutory language would create a rebuttable presumption that a certified applicator is acting pursuant to the BMPs in the absence of proof to the contrary.

Committee members pressed on several practical points: the length of certification terms (the draft currently sets certification at two years), whether training should mirror existing five‑year pesticide or other certification cycles, and whether smaller private contractors would have the equipment or resources to implement calibrating and record‑keeping recommendations. "There definitely are operators out there who could implement these once trained," one committee member said, while also noting that "not everybody" would be able to immediately adopt the equipment and recordkeeping systems described in the draft.

A deputy ANR official provided written testimony of support for draft 4.3 but noted that resources to implement the program were not in the governor's proposed budget and would require appropriation. Committee members discussed how appropriations committees typically handle such items — by placing implementation in a contingency clause until funding is available — and the resulting risk that statutory deadlines could be codified but not implemented until funds are provided.

Witness Adam McCrassen of the McCrassen Group and the Vermont Association for Justice urged caution about overstating the bill's liability shield, calling the draft "a limited liability, not an immunity bill," and recommending clearer drafting so the statute functions as a codified standard of care or a rebuttable presumption rather than implying total protection from lawsuits. "Liability is a good thing. It is why businesses, take extra measures to create safety," McCrassen told the committee.

Committee discussion produced two recurring drafting directions: (1) to consider tying the liability protection to the effectiveness of rulemaking and training rather than a fixed calendar date — for example by making the liability protection effective a certain number of days after ANR's rules take effect or after an implementation milestone — and (2) to add explicit legislative-intent or purpose language so LCAR and committee chairs reviewing the proposed rules understand the legislative standard the BMPs are expected to meet. Staff said they would draft contingent effective-date language and an intent/purpose section for committee review.

No formal committee vote on H.86 was recorded during this hearing. Committee members signaled interest in additional drafting and in reconvening with an updated version of the bill; members also discussed scheduling the next committee action for a subsequent meeting rather than immediate floor action.

The committee also discussed municipal coverage: the draft would amend the Vermont Local Roads curriculum so municipal applicators who complete the curriculum and follow the BMPs within the prior 365 days would have a similar limited-liability protection. Members and witnesses noted municipalities often already have incentives to reduce salt for budgetary reasons, but that catastrophic injury cases involving municipal snow removal remain a litigation risk and that recordkeeping and enforcement questions would drive future lawsuits.

Next steps: committee staff said they would redraft the bill to (a) clarify the statutory language around the limitation on liability (making it clear it is a rebuttable presumption/limitation, not absolute immunity), (b) consider relocating detailed recordkeeping requirements into the BMPs adopted by rule or make explicit that rulemaking may set additional records requirements, (c) add purpose/intent language for legislative review during LCAR, and (d) revise the timing so liability protection is contingent on rule adoption and reasonable notice/training periods. The committee did not take a final vote.

Votes at a glance: No votes were taken during this hearing; the draft H.86 was presented and discussed but not acted on.