During the winter of 2016, the state of Vermont discovered widespread contamination of private drinking water supplies with perfluorooctanoic acid (PFOA) in Bennington County. Perfluorinated compounds such as PFOA are manufactured chemicals used to make a variety of commercial and household products that resist heat and chemical reactions and repel oil, stains, grease and water. PFOA does not easily break down and persists in the environment for decades, particularly in water. Studies have shown a correlation between levels of PFOA in the blood and a variety of illnesses including high blood pressure, decreased birth weight, some immune system effects, thyroid disease, kidney cancer and testicular cancer. 

PFOA has been largely unregulated for decades under federal and Vermont law. But it is just one example of the risks posed to human health and the environment from the approximately 85,000 chemicals on the federal Chemical Substance Inventory. 

Recognizing the need to protect Vermonters from the impact of toxic chemicals, the Vermont General Assembly enacted Act 154 in 2016. The law directed the Agency of Natural Resources to convene a working group to address the use and regulation of toxic chemicals.  Among other tasks, the working group was to “evaluate whether civil remedies under Vermont law are sufficient to ensure that private individuals are adequately protected from releases of hazardous materials, hazardous wastes, and toxic chemicals and that persons responsible for such releases pay for any harm caused.”  

In January 2017, the working group published its final report. It recommended, in part, that people wrongfully exposed to toxic chemicals that caused an increased risk of disease should be able to sue to receive medical monitoring at the expense of the entity that wrongfully exposed them. Earlier this session, the Senate passed S.37 to address this recommendation. The House Judiciary Committee has been working on this bill, which will likely pass by the end of the Session.  

Medical monitoring is a program designed by experts in the field of public health and medicine. It includes screening and ongoing observation to detect the symptoms of latent diseases that may have been caused by exposure to a toxic substance. Monitoring allows for the earliest detection and treatment of these latent diseases. Similar to early detection efforts such as mammograms and colonoscopies, this program ensures the best possible health outcomes at the least cost by ensuring that those harmed are screened and referred at the earliest possible time when effective treatment can improve outcomes. It also ensures that the cost of monitoring is not borne by the general public or the harmed individuals. Rather, that cost is paid by the industrial entity that caused the need for incurring those health costs.  

It will not necessarily be easy for an individual to prove that he or she is entitled to the remedy of medical monitoring. The individual will have to convince a judge or jury that a company wrongfully exposed him or her to a known toxic substance; that the exposure to the toxic chemical increases his or her risk of developing a latent disease; that the exposure was at a level that could credibly trigger the need for medical monitoring and that there are diagnostic tests that can detect the latent disease. Although not easy to prove, the bill would provide a path to Vermonters to receive a remedy that is not currently available under Vermont law.

In short, the bill provides that those responsible for exposing Vermonters to toxic substances known to cause latent diseases will bear the costs of monitoring for those latent diseases. If you have any questions or input on this or other issues before the Vermont legislature, contact me at mlalonde@state.leg.vt.us or at 863-3086.

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