Toxic pollution bill, loathed by industry, approved by Senate committee

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The Senate Judiciary Committee advanced a bill on Wednesday that would hold companies liable for the release of toxic substances, whether intentional or not, and even if the pollution was done in accordance with the law.

Bill S.197, which is now headed to the Senate floor, was introduced by Bennington Sens. Dick Sears and Brian Campion, both Democrats, on Jan. 3 on behalf of hundreds of their constituents who for years have been drinking from poisoned wells contaminated by former Teflon-product manufacturer Chemfab, which is now owned by French multinational chemical firm Saint-Gobain.

Bennington residents whose wells Chemfab poisoned are suing Saint-Gobain to pay for medical monitoring in order to detect whether diseases arise associated with a Chemfab pollutant called perfluorooctanoic acid (PFOA). However, the case has illustrated how difficult that can be.

"These cases are always David and Goliath battles," Emily Joselson, an attorney representing the Bennington residents, told the judiciary committee Wednesday morning.

"All too often, experts for the defendants are explaining or trying to prove that these substances either aren't toxic; or if they are they're not that bad; or if they did it wasn't their fault it got off their property; or if they did, the harm that their neighbors are complaining of isn't really either that bad or recognizable under Vermont law," Joselson added.

"This bill starts to level the playing field," she said.

S.197 has proven highly controversial. It faces stern opposition from industrial concerns, who say it could raise the cost of their insurance premiums by holding them accountable for impacts that are impossible to foresee, and potentially permitted by the state.

Gov. Phil Scott's administration has also come out against the bill, saying it will "hurt hardworking Vermonters."

Joan Goldstein, Scott's Commissioner of Economic Development at the Agency of Commerce and Community Development, said the bill would deter Vermont companies from making investments in developing new technologies.

"This bill treats the responsible corporate citizen, one who takes care in procuring the proper permits, following all applicable state and federal regulations, same as the malicious polluter," Goldstein told the judiciary committee in February.

"Asking companies to be responsible for the foreseeable as well as the unforeseeable, despite acting as responsible corporate citizens in the eyes of the law, may discourage those companies from pursuing innovations in advanced manufacturing, bioscience, ag-tech and clean technologies."

A representative of Vermont industrial-advocacy group Associated Industries of Vermont made similar remarks.

The organization's members are "very concerned" because the bill doesn't account for pollution that may be authorized by permit, said AIV Vice President William Driscoll. The state has in the past permitted limited releases of known toxicants, and the state currently permits some pollutant releases that are illegal under federal law.

Chemfab had state permits for decades that authorized the release of a host of toxic and hazardous chemicals. The permits allowed Chemfab to release hundreds of unknown pollutants into the air as well; one of those pollutants is now known to have been PFOA, which settled out of the air into the soil, and from there leached into residents' wells.

The Agency of Commerce and Community Development intervened on Chemfab's behalf in the 1990s and sought to exempt the company from the state's air-pollution laws.

The Vermont Department of Health has tested about 500 Bennington residents for PFOA exposure and found blood contamination level significantly above the US average. Studies have indicated that PFOA exposure contributes to high cholesterol, high blood-pressure, immune system effects, thyroid disease, kidney cancer and testicular cancer.

Driscoll said that the cost of liability insurance would probably increase for Vermont industries if S.197 comes into force.

Goldstein said Vermont will create "an unlevel field of play" for companies inside the state by adopting its own strict-liability laws on toxic pollution if similar laws aren't in place throughout the country. The uncertainty will raise costs, which will make it harder to compete, which will reduce market share, and then the company "can't afford to employ its workforce, and this hurts hardworking Vermonters," she said.

Joselson, the attorney representing Bennington residents, viewed the potential impact differently. She said the bill "makes it more likely that corporate citizens are going to behave responsibly."

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