Reps. Sullivan and Browning file toxic chemicals legislation as alternative to bill filed by Sens. Sears and Campion


BENNINGTON — A promised, Rep. Linda Joy Sullivan, D-Dorset, has introduced a bill on industry liability for medical monitoring for residents exposed to toxic industrial chemicals like perfluorooctanoic acid (PFOA).

The bill (H-35) is partly in response to Republican Gov. Phil Scott's veto last year of similar legislation, which was sponsored by Bennington County's two Democratic senators, Dick Sears and Brian Campion.

That proposal was filed in the wake of discovery of widespread PFOA contamination of wells around former ChemFab Corp. plants in Bennington.

"The bill I and my lead co-sponsor Representative [Cynthia] Browning [D-Arlington] are introducing is very similar to legislation introduced by Senators Campion and Sears last year, but there are important differences," Sullivan said.

"Among other things," she said in an email, "unlike the previous bill on this subject, which allowed the imposition of liability and damages without a finding of either carelessness or actual injury, the legislation we are proposing would impose liability for medical monitoring (and allow attorneys to be awarded potentially substantial legal fees), only after a showing of fault; that is, negligence or recklessness on the part of the entity responsible for an improper release of toxic substances."

With stronger provisions on liability removed last session, the Sears/Campion bill passed the Legislature, but was nevertheless vetoed by Scott.

The county's two senators said they are reintroducing a version of their original bill (S.197), the version that passed in the Senate and was later watered down concerning liability for industry. Scott said he thought the bill would discourage companies from locating in Vermont.

Sears said Friday that the bill drafted by Sullivan "only covers medical monitoring and is not strict liability. It does not cover other damages, such as loss of home values, costs of alternative sources of clean drinking water, etc."

He added, "Senator Campion and I will once again be introducing a bill that places the onus on the polluter for both medical monitoring and other damages. Clearly, someone will pay, the polluter, the taxpayer or the victim/victims. We believe strongly it should be the polluter."

Jon Groveman, of the Vermont Natural Resources Council, said of the Sullivan bill, "A quick reaction is that it does not address liability generally for harm caused by toxic releases. S.197 addressed both the problem that Vermonters cannot recover for medical monitoring if they have high levels of toxics in their bodies but have not manifested a disease, and that is difficult to hold toxic polluters responsible for the range of damages caused by releasing toxic pollution through the strict liability provisions."

He added, "With regard to medical monitoring, [H.35] only allows funds awarded by a court to be given to people harmed under a government program to disburse the money. The more than a dozen states that allow medical monitoring claims have a much simpler and effective system — if you prove in court that a polluter must pay your medical bill, you can go to the doctor and have your bills paid through a fund. You don't need approval from or have to rely on a health department program to determine what kind of testing you get. This unnecessarily complicates the system — and puts the government between people with toxic contamination and testing and evaluation by their doctor."

Scott's objections

Sullivan said of her proposal, "It eliminates two very broad exceptions that existed in last year's bill. Those exceptions, for the agricultural and firearms industries, would no longer be necessary because the bill requires a showing of legal fault. It also tightens the standard of proof, requiring the presentation of qualified expert testimony on the question of exposure and likelihood of future injury."

She said H-35 "further establishes a mechanism for administering damage awards, overseen by the Vermont Department of Health. The courts should not be called upon to oversee and administer what is essentially a healthcare program of indefinite duration. They are already overburdened as it is."

The Dorset lawmaker said she had communicated with the Scott administration about the concerns he raised in vetoing S-197 in May, adding that H-35 "mitigates or eliminates entirely many of the concerns that led last year to the governor's veto."

She added, "Bottom line, we are just trying to get to `yes' on this important initiative advanced last year by my colleagues, designed to protect all Vermonters from the inappropriate handling of chemicals and other toxic substances known to be injurious to health."

According to Browning, "The [Sullivan bill] establishes a private right of action for medical monitoring damages incurred due to exposure to a toxic substance. It is a revised, improved, and clarified version of the bill that was vetoed by the governor last year, and I am hopeful that it may make it all the way into law this time."

Browning said she believes the bill "is essential for protecting Vermonters from careless use of toxic chemicals by corporations. Businesses must take responsibility for the substances that they use: they must ensure our communities are not damaged by them. Under this bill if there is exposure, the businesses may have to pay for medical monitoring. This puts them on notice to be really careful about releases of such chemicals or face the possibility of such costs."

Other House members who have signed onto the Sullivan bill as co-sponsors include Reps. Chris Bates (D), Jim Carroll (D) and Mary Morrissey (R) of Bennington; and Nelson Brownell (D) of Pownal.

Another factor that could affect the fate of legislation on liability for release of toxic chemicals is that the Legislature, following the November elections, now has an expanded Democratic/Progressive majority that is theoretically capable of overriding a gubernatorial veto.

Sullivan and Sears and Campion debated these issues last year in columns and letters to the editor, including one by Sullivan and a response from the two senators.

Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien     


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