Update & Action Alert | Legislation Moving to Expand Regulations Related to Chemicals and Hazardous Materials; Manufacturers Face Potential Increased Liability and Other Issues

The primary legislative response to the unfolding issue of PFOA contamination in Vermont are amendments made by the Senate Natural Resources and Energy Committee to a bill previously passed by the House, H.595.  The full Senate will be debating and voting on H.595 and the Committee’s amendments this Tuesday and Wednesday.  The House Fish, Wildlife, and Water Resources Committee took preliminary testimony on the Senate’s amendments this past week and is scheduling extensive testimony this coming week.

The scope of provisions in H.595 reach far beyond PFOA.

AIV has been providing testimony and working with coalition partners in both the Senate and House committees to address key issues and concerns with this bill.  As reported previously, environmental organizations had urged the Senate committee to address a wide range of environmental and chemical regulatory proposals that would raise a number of serious concerns.  The Senate committee declined to include the provisions proposed exclusively by these groups but did recommend creating a stakeholder working group under ANR to develop recommendations for next year addressing a number of the same issues, and it did include a couple of core proposals recommended by ANR and discussed further below.

It should also be noted that the Senate committee originally intended to include in H.595 language to implement the expansion of stormwater regulation and permitting from the current one-acre threshold to a new half-acre threshold (see related post).  However, this language was removed when the Committee finalized its amendments.

Key Provisions and Issues

To review the final version of amendments to H.595 to be debated on the Senate floor, click here for the Senate calendar and go to page 1420 and following for the amendments (the discussion of specific proposals below include page references for those sections).  You can also click here for a brief summary of the original House and new Senate provisions.

Below is a review of the key provisions and issues.  AIV will provide a more detailed summary of these and other provisions in H.595 in future posts as warranted.  However, if you have any questions about any of the provisions in this bill or any related issues in the meantime, don’t hesitate to contact us at info@aivt.org.

Administrative Discovery

The first major proposal from ANR would expand and enhance administrative discovery authority of the agency related to chemicals and releases or potential releases.  To review the current version of the provisions, see Section 8 (page 1423 in the Senate Calendar linked above) as well as Section 11 (page 1428).

The provisions would require individuals at companies involved or potentially involved in a release of chemicals or hazardous materials to provide extensive information and records related to:

  • The type, nature, and quantity of any commercial chemical product or hazardous material that has been or is being used, generated, treated, stored, or disposed of at a facility or transported to a facility.
  • The nature or extent of a release or threatened release of a hazardous material from a facility.
  • Financial information related to the ability of a person to pay for or to perform a cleanup or information surrounding the corporate structure, if any, of such person who may be subject to liability for a release or threat of release.

AIV and our coalition partners worked with ANR and the Senate committee on a number of changes to these provisions to address issues with who would be subject to such information requests, the circumstances when the authority would apply, the scope of information covered, protections for confidential business information, and concerns about the appropriateness and protections for financial information inquiries.  Although a number of changes were made in the Senate committee to address concerns with these issues, we will be seeking further refinements as the bill progresses, particularly regarding confidential business information and financial information.

Members and other companies with any questions or recommendations on this issue are encouraged to contact us at info@aivt.org.

Natural Resources Damages

By far the most concerning ANR proposal included in H.595, Sections 9 and 10 (page 1426 and 1428) would create a new “natural resources damages” liability in the current liability provisions under 10 VSA Chapter 159 (Waste Management).  The provisions draw from similar liability provisions under federal laws. Currently, for damages caused by the release of hazardous materials 10 VSA 6615 imposes liability for:

  • abating such release or threatened release; and
  • costs of investigation, removal, and remedial actions incurred by the state which are necessary to protect the public health or the environment.

Natural resources damages provisions are more expansive and detailed with regard to damages for injury, destruction, or loss of natural resources.  Natural resources damages would include the costs of restoring or rehabilitating injured, damaged, or destroyed natural resources to baseline conditions.  The provisions require extensive rulemaking to be fully fleshed out.

ANR contends that their proposal would simply clarify and more explicitly detail their authority to impose liabilities already allowed under current law.  Experts representing the regulated community, however, have raised concerns that this is not necessarily the case, and that the language could lead to substantial increases in liability and that the full consequences are unclear and could take significant testimony and debate to resolve.

AIV and our coalition partners argued in the Senate committee that enacting new natural resources damages provisions was at the very least unnecessary in light of the liability provisions already in law, and that the proposal raised sufficient concerns that there was insufficient time to provide sufficient testimony and debate before the end of the legislative session.  We also suggested that the working group discussed below would be a more appropriate initial forum to discuss whether such provisions are warranted.  However, the Senate committee included the provisions, expressing their expectation that the House would determine if there was enough time to resolve the question.

The House Fish, Wildlife, and Water Resources Committee has decided to pursue the matter this coming week.  AIV and our partners have provided initial testimony and will be working to make the case against the provisions.  Members and other companies concerned with this issue are encouraged to contact us at info@aivt.org with any questions and to learn about options for engaging on the issue.  If your company has experience dealing with natural resources damages at the federal level or in other states, it would be especially helpful to be able to draw upon such experiences in addressing this proposal for Vermont.

Working Group on Toxic Chemicals

A third major section of the Senate committee amendments, Section 12 (page 1429) would establish a stakeholder working group under ANR to make recommendations by January 15, 2017 to:

  • prevent citizens and communities in the state from being exposed to toxic chemicals, hazardous materials, or hazardous wastes;
  • identify and regulate the use of toxic chemicals or hazardous materials that currently are unregulated by the state; and
  • inform communities and citizens in the state of potential exposure to toxic chemicals, including contamination of groundwater, public drinking water systems, and private potable water supplies.

Although AIV believes that a stakeholder working group would be an appropriate forum to discuss the range of issues and proposals raised surrounding PFOA and wider environmental and chemical regulation, we believe the current working group proposal includes a number of advance directives and presumptions for recommendations on topics that might not be warranted.

AIV will be proposing alternative provisions to create a working group that focuses on more general questions and discussions to help frame ongoing development of more specific proposals only as warranted.

Members and other companies with interests in the regulation of chemicals in products, processing, and waste management, as well as related questions about public information, financing, and liabilities, are strongly encouraged to contact us at info@aivt.org with any questions and for information on options to engage on this issue.

Act 188 Reporting Deadline

As reported previously, the online reporting mechanism for manufacturers who have to file reports under Act 188, regulating chemicals in children’s products, has yet to be up and running despite the initial reporting period technically starting January 1 and reports being due July 1.  The Department of Health as stated that they will not seek to penalize manufacturers for failing to file reports by July 1, and would instead grant them up to six months once the system is operational.

AIV and our partners on this issue have not believed that it would be appropriate to leave manufacturers in technical violation of the statute and rule governing the reporting deadline, regardless of any enforcement assurance from the Department.

AIV is working with the House committee to include in H.595 legislative changes to the initial reporting deadline under Act 188 to effectively put in statute what the Department has proposed informally.  Initial indications are positive for such changes but we will provide any updates or alerts that might be warranted as we proceed.  Members and other companies with any questions about this issue, especially if you are covered under Act 188, are encouraged to contact us at info@aivt.org.