Sears accuses colleague of kowtowing to special interests

​Sen. Ann Cummings, D-Washington, is the chair of the Senate Finance Committee. Photo by Erin Mansfield/VTDigger
A lawmaker who pulled a bill off the Senate floor Thursday that would make companies liable for toxic pollution has been accused of delaying action on the legislation at the behest of industry lobbyists.
Sen. Ann Cummings diverted the bill from the Senate floor Thursday in a move critics say was unorthodox. They accused her of acting on behalf of insurance and manufacturing industries.
The Washington County Democrat flatly denies that charge and says she has an obligation to ensure that Vermonters insurance premiums won’t go up.
Cummings, who chairs the Senate Committee on Finance, sent the bill, S.197, back to her committee for further review, after pitching an amendment that would require the Department of Financial Regulation to monitor the impact of the bill on insurance rates and report back to the Legislature.
Sen. Dick Sears, D-Bennington, accused her of capitulating to special interests. “Inevitably the insurance industry had gotten to her, or the chemical industry or whatever,” Sears said.
In its review on Friday, Senate Finance did not alter the substance of the bill, Cummings said.
Sen. Dick Sears, D-Bennington, chair of the Senate Judiciary Committee. Photo by Bob LoCicero/VTDigger
“I don’t know what the senators from Bennington are so afraid of,” Cummings said. “We did nothing to the bill and never intended to.”
The legislation makes changes to insurance, and she said the committee of jurisdiction had a right to take a look at it. “We never tried to kill the bill because we never had the bill,” Cummings said.
Both insurance companies and environmental advocates lobbied her.
“I had two insurance representatives come in catching me in the hall, telling me they had concerns about the impact on the insurance market,” Cummings said. “I had people from the environmental groups doing the same thing, so I consider myself equally lobbied. I felt my arm twisted harder by the environmental community.”
A strict liability standard
Sears is sponsoring the bill with Sen. Brian Campion, D-Bennington. The two senators have worked closely to help residents of Bennington County cope with the impact of toxic chemical contamination from a local Teflon fabric coating plant that has rendered water from 500 wells in the area unpotable. A carcinogen, perfluorooctanoic acid, or PFOA, was a byproduct of manufacturing at the Chemfab factory.
The bill employs a legal principle known as “strict liability.” The legislation requires companies to pay for costs associated with harms caused by pollution. Under current law, victims and taxpayers are liable for the cost of medical care.
Insurance representatives say the bill could raise insurance rates and limit access to insurance coverage. That’s because a strict liability standard applied to toxic chemical releases would make it difficult for actuaries to assign a fair value to insurance policies for Vermonters and Vermont companies.
A strict liability standard for chemical contamination would be unique, according to Maggie Siedel, the American Insurance Association’s vice-president of public affairs.
“There is a reason no other state in the country has a law like this — it is very clearly unreasonable,” Siedel said. “As far as specific predictions about the impact of this bill on the insurance marketplace, each company will make their own assessments. Broadly speaking, this would be unprecedented, so policymakers would be remiss if they weren’t prepared for significant consequences.”
Rep. Brian Campion, D-Bennington. File photo by John Herrick
Siedel said while there is no direct comparison, a strict-liability law in New York that has been in place since 1923 and applies to construction sites for use of scaffolding has made premiums “prohibitively high,” while failing to make construction sites any safer.
Vermont Law School professor Kenneth Rumelt told the Senate finance committee Friday there is precedent for a strict liability standard in environmental law. The body of law that was created for the Superfund clean up program, known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), assigns strict liability to polluters who endanger public health and the environment, Rumelt said.
That law has existed since 1980. “These are things that have existed in Vermont… for a long time,” Rumelt said. “It’s not a completely foreign concept, it’s a concept that’s been around for decades.”
Vermont already has a strict liability law on the books for dangerous animals, Rumelt said.
Residents liable for medical costs
Bennington residents who face costs associated with medical monitoring and illnesses brought on by PFOA containmation are now in federal court attempting to recover money from Saint-Gobain Performance Plastics, the French multinational firm that bought Chemfab in 2002.
Sears’ and Campion’s bill would make polluters strictly, severally and jointly liable for the harm they cause Vermonters by releasing toxic substances. That means if a company or an individual has harmed a Vermonter with toxic pollution, that person or company can’t use ignorance, lack of malicious intent, or other factors as a defense in court.
The bill is not retroactive, so it wouldn’t aid the Bennington residents currently pursuing a class-action suit against Saint-Gobain, Campion said, but the bill could avert similar incidents in the future.
Campion vigorously defended the bill Thursday in the Senate Committee on Finance. He said Friday that there’s an emotional component for him in protecting Vermonters from toxic pollution.
“None of this can really benefit my area at this point, but having witnessed first-hand what happens when major corporations pollute, it’s heartbreaking to look at the health issues and the environmental impacts,” Campion said.
The Superfund laws provided a model for the two Senators who crafted the bill, Sears has said.
Sears formerly owned stock in Chemfab, and lived a mile from the factory, and he now is among the plaintiffs in the federal class-action suit against Saint-Gobain.
Chemfab was a valued part of Bennington’s economy before the company moved to New Hampshire to escape Vermont’s environmental laws, Sears said.
The company nevertheless poisoned hundreds of his constituents, who shouldn’t be on the hook for harm caused by Chemfab, Sears said.
“S.197 basically says, ‘The polluter pays,’” Sears said, “and that’s why the chemical industry and the insurance industry oppose the bill.”
Sears said his constituents who are fighting to recover damages through the courts from Saint-Gobain probably won’t see any relief through the case for another five to 10 years.
“That is very, very slow,” he said.
It often takes years for people harmed by polluters to recover damages, if they prevail, said Emily Joselson, an attorney representing the Bennington residents, in testimony Thursday to the Senate finance committee. People harmed by polluters often don’t bother taking the cases to court because they know corporations can hire better lawyers who’ll get their corporate clients off the hook, Joselson said.
Gov. Phil Scott’s administration opposes S.197, saying it will “hurt… hardworking Vermonters.”
Joan Goldstein, the commissioner of the Vermont Department of Economic Development, said last month that the bill would deter Vermont companies from making investments in new technologies.
“This bill treats the responsible corporate citizen, one who takes care in procuring the proper permits, following all applicable state and federal regulations, same as the malicious polluter,” Goldstein told the judiciary committee in February.
“Asking companies to be responsible for the foreseeable as well as the unforeseeable, despite acting as responsible corporate citizens in the eyes of the law, may discourage those companies from pursuing innovations in advanced manufacturing, bioscience, ag-tech and clean technologies,” she said.
The commerce agency used that same logic in the 1990s when it sought to exempt ChemFab from pollution laws at the time, according to state documents.
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