Vermont Working Group Looks To Prevent The Next PFOA-Like Contamination

Feb 3, 2017

After the industrial chemical PFOA contaminated the drinking water of hundreds of people in southern Vermont, legislators wanted to avoid another surprise contamination. So last year, they tasked a working group to figure out how the state could more proactively regulate chemicals. Now the group is back with recommendations.

Despite being recognized as an "emerging contaminant," by the federal Environmental Protection Agency, there was little the EPA could do to restrict PFOA's use. It took a lengthy legal battle for the industry to agree to phase out use of the chemical over the last decade. And that came too late for many Vermont, New Hampshire and New York residents.

The Legislature's working group — composed of environmentalists and agriculture and industry reps — spent six months researching and discussing chemical regulation policy. In late January, it presented its seven categories of recommendations to the Senate Natural Resources and Energy Committee.

A push for transparency

"At this point, [the first priority] is really trying to start getting at better information about what is being used where," said Lauren Hierl, the political director for Vermont Conservation Voters, and also a member of the chemical use working group.

"The more information we have on what's being used where, that can help us identify what are the things we might be most concerned about, and take further action on either restricting particular chemicals from use or from manufacture, or having response plans in place."

"I, for one, and I think my colleagues, are fed up. Lessons learned from what's happened in Bennington, and we need to act." — Bennington senator Brian Campion

Bennington senator Brian Campion is supportive of the move toward transparency. He says the state needs to get ahead of the next PFOA.  

"I, for one, and I think my colleagues, are fed up. Lessons learned from what's happened in Bennington, and  we need to act," Campion said. "People need to know what chemicals are being used around them, and what chemicals they are being exposed to."

Campion says if this had been done with PFOA— if the state had tracked which companies were using it and in what quantities — things might look different in southern Vermont:

"If we had moved forward in the United States, and listed PFOA as chemical of concern early on, people would know about it, we would have been probably addressing these issues, perhaps decades ago, rather than now," Campion said. 

The Toxic Substance Control Act was updated in 2016 to give the EPA more power to require testing of chemicals; it's unclear how the new law will be rolled out under the new administration in Washington.
Credit Illustration: Emily Alfin Johnson, Kathleen Masterson / VPR

But not everyone is on board with required transparency as a preventative measure. 

Resistance to more layers of regulation

"Depending on the specifics of the program, these can be extremely complicated, and expensive, and time consuming, to compile the reports," said Bill Driscoll, the vice president of the Associated Industries of Vermont, and also a member of the working group.

Driscoll says at a minimum the existing reporting processes should be streamlined since companies are already reporting some chemical uses to different agencies. And he says there should be more compelling reasons before the state adopts a list of chemicals to be reported. 

"Depending on the specifics of the program, these can be extremely complicated, and expensive and time consuming to compile the reports." — Bill Driscoll, working group member

"Why are you asking about particular chemicals? Is there a level of concern or risk that warrants keeping track of that, and is that commensurate with the cost and process of actually going through that reporting process?" Driscoll says.

Deciding where to draw the line in the sand for which chemicals are "of concern" and merit public reporting isn't always clear-cut. But states have done it. 

Vermont has a list from Act 188 (pages 10-13) that outlines chemicals required to be reported if they are in children's products. That reporting just began this January.

Act 188 was passed in 2014, before the PFOA contamination became known, so PFOA is not among the chemicals required to be reported in children's products. This list of 66 chemicals was adopted from research done by Washington state.
Credit Illustration, Emily Aflin Johnson / VPR

Massachusetts has a larger list of chemicals included in its Toxic Use and Reductions Act. Washington and Oregon have similar reporting and phase out programs. 

And after PFOA contamination also affected our neighboring state, New Hampshire is considering a bill that would take a more precautionary approach in determining new criteria for emerging contaminants in drinking water.

Limiting PFOA's chemical cousins

In addition to suggesting public reporting, the Vermont working group made seven categories of recommendations in total. 

"There was a recommendation to restrict the use of perflourinated chemicals like PFOA in food contact products and dental floss," says Hierl, of the League of Conservation Voters.

Those are chemicals closely related to PFOA, which was found in Bennington water. Perflourinated chemicals are used in products like fast food wrappers, microwave popcorn bags and some dental flosses.

The group recommended either banning or requiring labeling of any food-contact products that have these chemicals and are sold in Vermont.

Debate over who is responsible

Hierl says another recommendation came directly out of Vermont's experience in Bennington County:

"Giving Vermonters better legal tools to go after companies, and for example to collect expenses they might be paying for medical monitoring over the years," she says.  "If they've found that they have high levels of PFOA contamination in their body, that the company who actually exposed them to that would pay for those medical monitoring expenses."

Driscoll, with the Associated Industries of Vermont, says his impression from the working group discussion was that medical monitoring was not very common.

Driscoll said he was concerned about a recommendation seeking a pathway for people to claim damages for impact on property values.

"If the cause of concern is a legal and permitted use of a chemical, is it really appropriate to have companies to be liable for perceived damages for that when they're in full compliance with the law?" he asks. 

The group also resurrected the debate over when to test drinking water welsl, and which chemicals to test for, but there wasn't clear agreement on the best method. 

No path forward yet

Its early days for all these considerations. The report was submitted to the legislature in January, and so far no specific legislation has been introduced based on its recommendations. 

Addison senator Chris Bray is the committee chair of the Senate Natural Resources and Energy committee — and he posed a number of questions about cost and feasibility during the presentation.

"We've let chemicals be used in the environment, and until there is a significant health impact identified after the fact, by virtue of exposure, then we move to regulate. And I think it leaves all of us in vulnerable position." — Senator Chris Bray

But he was clear about the importance of prevention:

"We've let chemicals be used in the environment, and until there is a significant health impact identified after the fact, by virtue of exposure, then we move to regulate. And I think it leaves all of us in a vulnerable position," Bray said.

Bray says its unclear how the new presidential administration will treat consumer protection, but in his view it's unlikely to make regulations stricter. His colleague, Bennington senator Brian Campion, adds that it seems to be up to the states to take the lead.