It's difficult to keep up with the many absurdities coming out of the Trump administration, but near the top of the heap for me is the recent news that the Environmental Protection Agency (EPA) has overhauled its process for determining whether new chemicals — used in everything from household cleaners and industrial manufacturing to children's toys — pose a serious risk to human health or the environment.
Among other changes, the agency will no longer require that manufacturers who want to produce new, potentially hazardous chemicals sign legal agreements that restrict their use under certain conditions. This begs the question: If the EPA is no longer protecting citizens from toxic pollution, do the states and individuals have the tools needed to protect themselves? Unfortunately, the short answer in Vermont is no. However, if legislation passed out of the Vermont senate last week becomes law, Vermont will take an important step toward significantly improving protections for Vermonters harmed by toxic pollution.
Common sense would tell us that if a business allows a known toxic chemical to contaminate a neighbor's water supply, or the soil on a nearby playground, that business should be liable for anyone who becomes sick as a result. Surprisingly, it's not that simple.
Current law is heavily weighted favor of protecting corporations rather than providing justice for victims of toxic chemical contamination. Vermont Senators Dick Sears and Brian Campion — who know first hand the heart-ache and suffering caused by toxic pollution from the experience of their friends, neighbors and constituents in Bennington — introduced a bill that would take a step toward leveling the playing field.
That bill, S.197, would hold toxic polluters responsible for harm caused by chemical releases regardless of whether the polluter was negligent. Under the proposed law, companies that release dangerous chemicals into the environment and who caused the contamination of wells or cause Vermonters to become sick would be held responsible, period. Under current law, polluters that release known toxins that cause harm can attempt to escape responsibility by claiming they complied with industry standards or regulations. In other words, a polluter can be found to have caused harm, but be found not be negligent.
It is extremely difficult for people who have been harmed by toxic exposure to hold corporations accountable through litigation given the current legal standard. Corporate defendants often have tremendous financial and legal resources to defend their company from being found legally responsible for harm caused by a chemical release.
Adding to the challenge is that fact that the burden of proof lies with the families who are impacted. Vermonters must prove that the company released toxic chemicals into the environment and that those released chemicals caused them harm. In order to recover damages, they must further prove that the chemical release was the result of negligence.
This means that even if you can prove that a company released a toxic substance, and that the chemical caused you demonstrable harm, that company can be left off the hook if it was following applicable rules and standards — rules and standards that are in the very real process of being gutted by the EPA. S.197 breaks through this legal quagmire by simply holding companies liable for harming people.
S.197 would also provide Vermonters with access to courts to fight for compensation to cover medical testing associated with high levels of chemicals caused by a toxic release. Currently, people with high levels of chemical contamination in their bodies cannot recover costs for expensive medical testing — unless and until the contamination results in a serious disease. This has placed a severe burden on many Bennington residents who have many times the safe levels of the toxic chemical PFOA released by the Saint-Gobain (formerly ChemFab) Corporation.
S.197 recognizes that this is simply unfair. Vermonters who have suffered chemical contamination through no fault of their own should not be forced to bear these costs. They should not be required to face ongoing medical bills and rising health insurance increases until they actually — perhaps inevitably — contract a serious disease.
In Bennington, the state has stepped in to conduct some of the medical monitoring of PFOA for people with elevated levels of the chemical. But that monitoring is only available in Bennington, not for people who, after growing up drinking from contaminated wells, have moved away from town to attend school, serve in the military, or pursue opportunities elsewhere.
During the Senate debate, Senator Sears asked his colleagues a very simple question. When citizens have high concentrations of dangerous toxics in their bodies due to exposure, someone will pay. Should the entity that pays be the polluter who released the chemical, the person who became contaminated because they drank from their well, or the taxpayer?
To me, the answer to that question is a matter of fairness. And fairness is the ultimate goal of S.197.
Brian Shupe is executive director of the Vermont Natural Resources Council. He lives in Waitsfield.