Editor’s note: This commentary is by William D. Moore, the president and CEO of the Central Vermont Chamber of Commerce, who is a registered lobbyist.
[O]ne bill that is making its way through the legislative process may have ramifications that far exceed the intent of the legislation. It has been introduced in response to the chemical contamination around the former Chemfab (Saint-Gobain) facilities.
The bill in question is S.197, An Act Relating to Liability for Toxic Substance Exposures or Releases. This act may have an impact on any business or individual that uses chemicals of any kind, whether for cleaning, as a part of the manufacturing process, dyeing, painting, engine maintenance or repair, personal services, dry cleaning, salon processes or any other use.
Importantly, the liability extends into the future, should a chemical allowed in use today be deemed harmful in one, five, 20, 50 or 100 years or more into the future.
In its simplest form, this means that if you use a chemical to clean with today, and you or your employees are exposed to the fumes and in 2033 that chemical is deemed to be harmful to human health, you could be liable for damages. You could also be liable for the cost of providing medical monitoring for anyone who was exposed to those fumes any time after the enactment of the law, regardless of whether you followed strict adherence to the instructions while using the chemical for cleaning.
The bill provides strict liability for any personal injury or property damage resulting from the intentional or unintentional release of any toxic substance into the air, water or ground. The liability accrues regardless of whether a permit was in place or required, or how safely the product was being used. The bill treats the careful handler the same as the intentional polluter.
Strict liability as applied in this act means that no matter how carefully a defendant uses a substance, if there is the potential for harm, the defendant is liable. In addition to strict liability, the measure calls for joint and several liability. This means that a defendant that is responsible for 1 percent of the exposure is potentially liable for all damages.
The bill also provides that the defendant will be responsible for medical monitoring for anyone who has been exposed to a chemical if a preponderance of evidence shows that: the person was exposed to a toxic substance; there is a probable link between exposure to the toxic substance and a disease or diseases; the person’s exposure is the result of another’s tortious conduct including negligence, battery, strict liability, trespass and nuisance; the person’s exposure to the toxic substance increases the risk of developing a disease; diagnostic testing is reasonably necessary. A person does not need to prove that the disease is certain or likely to develop as a result of the exposure. Testing is reasonably necessary if a physician would prescribe such testing for the purpose of detecting or monitoring the disease.
The Center Vermont Chamber of Commerce will be holding a meeting to discuss the impact that this legislation could have on business and future development in Vermont. The meeting will be on March 23 at 7:30 a.m. in the Conference Center at Beaulieu Place in Berlin, the Chamber offices. There is no cost to attend, but limited seating is available, and reservations are required. Information will be presented to you by experts who will present this complex legislation in simple terms.
Those interested in attending can register by return email to info@centralvt.com or you may register at centralvt.com if you plan to attend this most important meeting.
