Legislation, H.268, was introduced this week including a wide array of new chemical regulations and legal liabilities based in part on the recommendations in the Act 154 Working Group report addressed previously (see related post here). These changes could impact many Vermont manufacturers, other Vermont businesses including retailers, as well as out of state manufacturers.
Vermont manufacturers and other potentially impacted companies are strongly urged to review H.268 and to contact us at email@example.com for more information and to learn about options to engage on this issue. AIV is working with a coalition of companies and trade associations to share information and analysis and to coordinate communication with the Administration and Legislature on key issues and concerns.
The following is an overview of key provisions of particular concern:
Chemical Reporting and Reduction Requirements; Publication of Information
Current state law requires companies that generate more than 2640 pounds of hazardous waste and manufacturers that use more than 1000 pounds of certain toxic chemicals annually to file reports, prepare use reduction plans, and pay fees related to those substances. These statutes are often referred to as Act 100, the Pollution Prevention Planning Law, or the Toxics Use Reduction and Hazardous Waste Reduction statutes (click here for the ANR webpage and click here for the statutes, 10 VSA §6623-§6632).
H.268 would make a number of changes to these statutes, including:
- Eliminating the 2640 pound and 1000 pound planning thresholds, as well as several other thresholds in the law, and require ANR to set new ones by rule. It would also lower the size threshold for “large users” from 10 employees to 5 employees.
- Expanding toxics covered by the law from the current definition, “any substance in a gaseous, liquid, or solid state listed pursuant to Title III, Section 313 of the Superfund Amendments and Reauthorization Act of 1986”, to also include chemicals listed in the Chemicals of High Concern to Children statute (18 VSA 1773), as well as EPA’s list of “persistent, bioaccumulative, and toxic chemical substances” (click here). ANR would retain authority to make changes to the list of covered toxics by rule.
- Requiring ANR to publish electronically nonconfidential information reported on toxics use and hazardous waste generation by municipality.
- Requiring that use and reduction plans mandated under the statute be prepared only by specially certified planners.
Act 100 reporting can be administratively burdensome and costly. Between expanding the list of covered chemicals, throwing open the question of thresholds triggering compliance, and requiring only specially certified planners, H.268 could increase the costs and burdens facing companies currently covered and an unknown number of newly covered companies. In addition, there could be concern for misunderstanding or mischaracterization of newly public information.
New Legal Liabilities
H.268 would create three new legal liabilities for companies:
- Civil enforcement suits against parties alleged to be in violation of permits or other Waste Management (10 VSA Chapter 159) statutes and regulations or who are or might be responsible for an imminent threat to public health or the environment related to a hazardous or solid waste. Suits might not be allowed if certain enforcement or compliance actions are already underway.
- Lawsuits for strict, joint, and several liability for any personal injury or property damage related to any release of a toxic substance, whether intentional or unintentional and regardless of whether or not the release was permitted. Liability could extend to contributing parties, including a chemical manufacturer that did not warn of the potential for the harm alleged.
- Lawsuits for the costs of medical monitoring for a disease or diseases that could be probably linked to any exposure to a toxic substance, regardless of whether any disease has been detected.
The liability provisions of H.268 would create uncertainty and cost risks for Vermont manufacturers and other businesses, as well as out of state suppliers, even for actions or incidents connected to legal and permitted activities.
Consumer Product Testing and Reporting; Potential Restrictions and Bans
H.268 would expand the existing Chemicals of High Concern to Children statutes (18 VSA Chapter 38A) to all consumer products and undermine certain standards and procedures in the current law related to regulating or banning specific chemicals and products, as well as require phasing out certain children’s products.
Under the existing law, often referred to as Act 188, manufacturers of certain children’s products (click here for definitions of covered products and manufacturers) sold in Vermont are required to report biennially on a list of chemicals (click here for the current list) present in children’s products either as ingredients or as contaminants. Reported information is to be made public subject to some confidentiality provisions. The Department of Health, upon the recommendation of a stakeholder Working Group, may ban or otherwise regulate products containing certain listed chemicals based on several criteria.
H.268 would make several changes to Act 188, including:
- Conforming changes throughout the statute to apply to the manufacturers of consumer products (“any product that is regularly used or purchased to be used for personal, family, or household purposes”) rather than just children’s products, subject to certain product exemptions currently in the law.
- Removal of the requirement that the Working Group give prior approval before the Department acts to ban or otherwise regulate specific chemicals and products and reduction of the scientific standards for adding chemicals to the covered list or regulating products.
- Requirement that any reported chemical present in a covered product intended for children under three be removed or replaced within four years of an initial report.
Act 188 is still in the initial stages of implementation, with the first reporting deadline only just past on January 1, 2017. Compliance costs and administrative burdens are still being assessed. H.268 would impose a significant expansion of the current law with unknown financial impacts. That reporting requirements are not based on actual health concerns or risks and that the new bill would reduce the procedural steps and scientific standards for expanding covered chemicals and regulating specific products only increase the concerns with the bill’s impact on manufacturers in and outside of Vermont.
PFAS Ban for Dental Floss and Food Contact Substances
H.268 would ban dental floss and food contact substances containing PFAS (any substance in the family of perfluorooctanesulfonic acids). Food contact substances would include: “any substance intended for use as a component of materials used in manufacturing, packing, packaging, transporting, or holding food if such use is not intended to have any technical effect in the food”. The bill includes restrictions on any replacements for PFAS.
The practical impact of these provisions, including better understanding the prevalence of PFAS in the covered products and alternatives available, is still under review.