Scott vetoes medical monitoring bill for toxic chemical exposure

Legislation would have held polluters responsible for long-term medical testing

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Gov. Phil Scott has vetoed a bill that would allow Vermonters a right-to-action to access medical monitoring for diseases linked to toxic chemical exposure, citing business-related concerns.

State Senators Dick Sears and Brian Campion, both Democrats, introduced S.37 in January, along with Sen. Christopher Bray, also a Democrat.

"I'm deeply disappointed in the governor's action," Sears said when reached Monday. "Frankly, I think it's a slap in the face of the people of this community who have suffered the effects of contamination."

S.37 would have established a legal mechanism for victims of exposure to toxic substances to seek in court long-term medical monitoring costs from the owner or operator of a large facility from which the substance was released, provided the company has had 10 or more full-time employees.

The bill as passed by the Senate had a strict liability component to hold polluters liable for not only medical monitoring, but related costs like decreased home values as a result of such pollution. That provision was taken out.

Sears said that he believed when the strict liability provision was taken out, the governor would support the bill.

"Instead of listening to [people], he gets more scared by a few employers that say, `if we can't pollute, we don't want to be in Vermont,'" he said. "That's really disturbing Medical monitoring is really expensive, and it comes down to who should pay for it."

For the governor to not stand up for the people is disappointing, he said.

"Clearly, the business interests got to him," Sears said of Scott. "I don't think the governor understood, or if he did, his cronies in the business community won out."

Campion sent a statement to the Banner late Monday afternoon, calling Scott's veto of S. 37 "a defeat for Vermont's citizens and a big win for polluters."

"The vast majority of Vermont companies are doing the right thing for their workers, their communities and the environment," he said in the statement. "However, when Vermonters are harmed by a polluter, the Governor is sending the message that victims and the taxpayers should pay out of their own pockets.

"Our health, our property values and our futures will bear the price of this Governor's decision. However, we will not stop fighting for basic protections and hope this governor, or the next, will see that investing in Vermont's environment is a winning strategy that helps both communities and businesses. It is the right thing to do."

In a media release from the governor's office late Monday afternoon, Scott, in a message to the legislature, said that S.37 "lacks the clarity needed by Vermont employers who our state relies on to provide good jobs."

"Numerous Vermont employers have expressed concerns to me, and to Legislators, that the unknown legal and financial risks, and increased liability, is problematic for continued investment in Vermont," Scott said in the message. "If Vermont manufacturers and others cannot secure insurance or cover claims, then our economy will weaken, jobs will be lost, tax revenue will decline and, ultimately, all Vermonters lose."

Bennington and nearby towns have been struggling with toxic chemical contamination for years.

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Hundreds of Bennington residents were impacted by PFOA, or perfluorooctanoic acid, contamination found in private wells in early 2016 around two former ChemFab Corp. factories that once coated fiberglass fabrics with Teflon. PFOA has also been discovered in North Bennington and Pownal.

PFOA was widely used for decades to manufacture products like Teflon, which in turn was used to coat wire, cookware, tapes and fabric. PFOA and related industrial compounds have come under growing scrutiny as an emerging health risk, linked to various cancers and other conditions like high cholesterol, ulcerative colitis, thyroid disease and pregnancy-induced hypertension.

In his message, Scott identifies a "path forward," through a bipartisan amendment introduced during the third reading of the bill on the House floor on May 16. That would provide affected Vermonters with a remedy based on a "well-established legal test," he said.

That amendment would have required a person be "significantly" exposed to the toxic substance in question, and as a result of that exposure, they have a "significantly" greater risk of contracting a latent disease.

Sears called that amendment an attempt by business and industry to further weaken the bill. That's because including the term "significantly" would have made it more difficult to win a case in court, he said.

That amendment was rejected by the House Judiciary Committee, because the test to establish legal liability was already so hard that adding this amendment would make it basically impossible to establish liability, said Jon Groveman, policy and water program director for the Vermont Natural Resources Council, which was a strong proponent of S.37.

Groveman called that change a "poison pill" in that it would have protected industry and not Vermonters.

Through the legislative process, S.37 was narrowed and changed to address concerns raised by Scott and the business community, and was broadly supported in the House and Senate, Groveman said.

"This was not a close vote in the legislature, so it was very disappointing," Groveman said. "We were hoping that the governor would heed what the legislators were saying, strongly supporting this bill."

With such strong legislative support, there's a possibility the veto could be overriden, he said. A veto override requires a two-thirds majority in both the House and Senate.

"We're very close to an override, and the next step is to convince the legislature to take up an override vote, and I think we could [be] successful," Groveman said.

As passed by the House and Senate, the bill would have taken effect July 1.

The bill would also have amended Vermont law to hold those who manufactured a hazardous material for commercial sale liable for abating a release or threatened release of that material, along with the costs of investigation, removal and remedial actions incurred by the state to protect public health or the environment.

The provision would have required that person knew, or should have known, that the material presented a threat of harm to human health or the environment.

"That was an important change," Sears previously said of the provision.

Patricia LeBoeuf can be reached at pleboeuf@benningtonbanner.com, at @BAN_pleboeuf on Twitter and 802-447-7567, ext. 118.


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