A bill that would prevent Vermonters from drinking water polluted with toxic chemicals has died in the Legislature this year.
The Bennington legislator who introduced S.103 said he’s optimistic lawmakers will adopt the legislation next year.
Sen. Brian Campion, D-Bennington, hoped S.103 would address some concerns raised by drinking water contamination in his district. Dozens of wells in Bennington and North Bennington residents were discovered last year to have been contaminated with a carcinogen called perfluorooctanoic acid, or PFOA, from a Teflon manufacturing plant.
The legislation would have required new wells to be tested for certain contaminants, and would have established a working group charged with setting up a state chemical reporting system.
The bill ran into opposition from industry groups after attempts were made to have the legislation include possible restrictions on toys made from substances considered toxic to human health.
Hundreds of Bennington and North Bennington residents were recently discovered to have been drinking water contaminated with a carcinogen called perfluorooctanoic acid, or PFOA, which a manufacturing plant called ChemFab dispersed over both towns for decades through the factory’s smokestack emissions.
Colleen Healy, a North Bennington homeowner, is frustrated that the Legislature didn’t advance the bill. Her well has the highest measurable concentrations of the toxicant of any North Bennington residence.
“It’s a serious disappointment it didn’t pass,” Healy said.
State regulations define PFOA as hazardous waste that is in excess of Vermont’s enforcement standard in concentrations greater than 20 parts per trillion.
“I feel that water is essential for all of us, and there should be no question that our water’s safe, in Vermont or anywhere,” Healy said. “I feel like North Bennington, we’ve proven that something needs to be done to make our waters safe and clean.
“It’s happening now, it’s not something that’s happening in the future, and it needs to be taken care of now,” she said.
Campion said he’s confident that the bill will gain traction next year, and said he was surprised legislators didn’t adopt it this year.
House lawmakers spent so long reviewing the bill and sending it back and forth between committees that it arrived in the Senate too late in the session for members of that chamber to vet it to their satisfaction, Campion said.
“If the House had gotten it back to us three weeks ago, I think it would be on the governor’s desk” to be signed, Campion said.
As it stands, he said, “the House got it back to us too late, it’s that simple… I was surprised it took so long.”
Senators need time to take testimony on amendments added by members of the House, Campion said, and because the bill arrived back in the Senate only recently, they had to defer its adoption to next year.
Senate Pro Tem Tim Ashe, D/P-Chittenden, sent the bill to the Senate Health and Welfare Committee late last week for review. Legislative rules make it almost a certainty that the bill will not emerge from that committee until the next legislative session.
But the bill should be able to move through the Statehouse in 2018, Campion said.
“I know this is a priority for my Senate colleagues, and it’s an important thing for Vermonters,” he said. “I believe it’s going to be one of, if not the first thing, that the Senate takes up [in 2018].”
The bill would have also expanded the state’s ability to regulate toys containing potentially toxic chemicals, and these sections proved the most contentious for lawmakers and lobbyists.
Under the bill, the state’s health commissioner could undertake the state’s rulemaking process for toys that “may” harm children as the result of toxic substances they contain, as opposed to the current standard, requiring that it be proven such toys “will” harm children.
The commissioner could also initiate rulemaking to regulate children’s toys based on independent, peer-reviewed research, as opposed to needing “the weight of evidence” supporting such a finding.
William Driscoll, vice president at Associated Industries of Vermont, said this change amounted to “a gutting of the scientific and health standards that regulatory decisions [are] made by.”
The bill’s provisions would allow the health commissioner to make determinations on substances’ toxicity “that could literally be based on any independent study, even if the consensus of the scientific community would have been different,” Driscoll said.
But the rulemaking process doesn’t allow bureaucrats to adopt rules by fiat, said Lauren Hierl, political director at Vermont Conservation Voters. If the health commissioner wants to pass a rule regulating some chemical, that rule must go before the public for review, and must win the approval of a panel of legislators before it can be put into effect, she said.
Industry representatives at the federal level use the term “weight of evidence” as a way to sow doubt toward legitimate scientific research, and in doing so, to introduce years of delay ahead of needed regulatory changes, Hierl said.
“How do you weigh an industry study,” she said, “compared to an independent study? Do you count one more than another?”
The “weight of evidence” standard also unreasonably discounts the importance of recent scientific discoveries and refinements, and of increasingly sensitive instruments and techniques, she said.
“Industry has plenty of tools to make sure the commissioner is making sound decisions based on available evidence,” Hierl said. “The groups that profit off of using these chemicals fundamentally don’t want a program that works, and that’s what this fight is about.”
The PFOA that motivated Campion to push for the bill’s adoption was not discovered until 2015 to be in Vermonters’ drinking water. And although manufacturers used it since the 1940s, it was not until 2014 that the U.S. Environmental Protection Agency listed it as a chemical with the potential to harm human health.
A massive lawsuit settled earlier this year resulted from recently discovered evidence that chemical giant DuPont knew of PFOA’s toxicity since the 1960s and hid this information from regulators and the public.
