Proposal would let citizens take up water pollution enforcement

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A Senate committee considering clean water legislation is looking at whether to give Vermonters the right to sue polluters if state regulators don't pursue enforcement.

This type of action, called a citizen suit, is permitted in 19 other states, advocates say.

H.595 is meant to expand protections for drinking water. Members of the Senate Natural Resources and Energy Committee proposed amendments Monday, including allowing citizen suits.

The suits could be brought in the environmental division of Superior Court for the purpose of protecting groundwater and preventing certain types of pollution.

To bring suit, a state resident would need to show he or she was affected by potential water hazards, said legislative attorneys, but those affected by pollution potentially include people enjoying water recreation or using playgrounds irrigated by polluted water.

This type of suit would become available if the secretary of natural resources failed to protect groundwater from statutory violations that endanger public health or the environment.

Senators worried that the current definition of hazardous substances wouldn't include toxins such as perfluorooctanoic acid, or PFOA, a suspected carcinogen found to have contaminated drinking water in Bennington, North Bennington and Pownal.

PFOA is considered a "chemical of emerging concern," according to Environmental Conservation Commissioner Alyssa Schuren. As such, it remains largely unregulated. The Vermont Department of Health, acting in concert with the DEC, has established a recommended limit of 20 parts per trillion for the chemical in drinking water, but this limit is advisory rather than regulated.

Hazardous materials are listed by various agencies and entities according to a number of criteria, and lawmakers will need to decide which list to use in water quality legislation, said the committee's chair, Sen. Chris Bray, D-Addison.

Any plaintiff who prevailed in this type of suit could receive only attorney fees.

The amendments proposed Monday in committee could also compel private industries to divulge potentially hazardous substances that are in use, stored at or released from a facility. Facility owners would also be required to tell the state whenever hazardous waste has been released or when it threatens to be released.

A provision in that amendment would require companies responsible for releasing toxins to give the state financial and other information relating to a company's corporate structure, in part to determine whether the company has the resources to pay for cleanup.

Another passage in that same amendment would allow the natural resources secretary to assess damages to anyone liable for destruction of natural resources. Those damages could include the cost of remediation, compensation to the state for the loss of resources, and other costs the secretary deems reasonable.

Another amendment introduced Monday would require that owners test new drinking water wells for a suite of pathogens and harmful chemicals. The amendment uses the same language as a bill — S.77 — that Gov. Peter Shumlin vetoed in 2011.

This amendment would require testing for arsenic, lead, uranium, alpha radiation, coliform bacteria, nitrates and nitrites, fluoride, manganese and any other chemicals or pathogens the Agency of Natural Resources specifies by rule.

When Shumlin vetoed S.77, he said Vermonters didn't need the burden of additional costs as they seek drinking water. The required tests were estimated to cost about $75 at that time, according to the Legislative Council.

Natural Resources Committee members said they hoped to tailor the amendment so it might allow local governments to require testing for contaminants deemed to be of particular local concern.

Another provision in the amendments would charge the Agency of Natural Resources with compiling a report showing where toxins and hazardous materials are used, stored or managed in the state.

The bill that these amendments would modify, H.595, tells the Agency of Natural Resources to write rules on how residents must treat surface water intended for use as drinking water.

Senators at Monday's committee meeting said they intend to take up the bill again Friday and potentially vote on amendments then.


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