Vermont Legislature SmartTranscripts:

[Rep. Peter Conlon (Chair)]: Okay. We're gonna try this again. House education, February 13. The committee is reviewing h five forty two. It wasn't on the agenda for markup today, but we're gonna talk about changes we might wanna make, and then we'll have Legis Council back in maybe next week and put this out. So we're going to do a quick overview of the bill again, talk a little bit about the changes that the Agency of Natural Resources came in and suggested, and then see what folks want to do with it. Legislative Counsel, the floor is yours, and thanks for being here.

[Michael Grady (Legislative Counsel)]: Good morning. This is Michael Grady with Legislative Counsel. Just for setting the context, In 2021, you required all public schools, all independent schools to conduct PCB testing for air air quality in their schools. And initially the deadline was 2024, but over time you extended that to 2027. In addition, since 2021, you appropriated significant amounts of money either to the Agency of Natural Resources or through some of the existing ANR funds to ANR and the Agency of Education to do the testing that is required by act 74 of 2021. This bill would stop the repeal the requirement for testing of PCB and public schools and independent schools. And would but would it also address how those schools that have already done testing have already exceeded school action levels, or maybe exceeded the immediate action levels, would need to go forward and would address how to continue to fund those schools and whatever remediation or efforts they would need to take to address PCBs in their school. So that's the general. So you can start section one. It is a session law section. It is not in statute. All of the requirements for testing of PCBs are almost all are in session law. Are not in statute. So the first page, a first subdivision of notice page two, sub A. It says, accept as provided down in sub B, which we'll get to in a minute, and notwithstanding the requirements of Act 74 from 2021, which is what required testing, public schools and independent schools that were constructed or renovated before 1980 shall terminate any scheduled or ongoing testing for PCBs in public schools and approved and recognized schools. So they will no longer be required to do testing by 2027. However, where they have already completed testing, where ANR already did the testing and the school tested positive for the presence of PCBs at a level that requires continued testing over the school action levels or over the immediate action levels or over federal law, testing at the school shall continue and shall be funded by the state. Now if ANR completed the PCB testing, you're now on page 14. Prior to the effective date, school tested positive in excess of the state action levels. The state, consistent with previously enacted law, shall pay for the cost of investigation, remediation, and removal of PCBs at the school. The state has always said that they were gonna pay for it. The question is, do they have the money? If as a result of ANR testing, a public school or an approved and recognized independent school tested positive for PCPs in excess of the state action levels, the school shall not be required to initiate or continue remedial measures if it's not fully funding, the state is not fully funding, the school doesn't need to go forward with remedial measures. The most viable and effective form of remediation is replacement of the school building. So going through school construction process. And federal law does not require immediate remediation of PCBs because there is a federal provision that says if you test in excess of a certain amount, you have to get that PCB or the source of that PCB emission out of your school or out of any building, frankly. And so you can't say, don't do anything if you exceed the federal limit. The federal limit says you do. And frankly, the chair tried to get EPA to say that you didn't need to do anything. And EPA said, no, you still need to piss. So any funds that remain in the funds that you already appropriated to ANR and Agency of Education for indoor air quality testing in public schools or approved and recognized independent schools shall no longer be used for testing, shall be used instead for the cost of investigation, remediation, and removal. ANR did the testing and tested positive for those PCBs above that state action levels. If the state lacks sufficient funds, they are required to go report to you and your committees on appropriation the amount of funds that the general assembly should appropriate in order to fund that investigation remediation removal as you have committed to, as the general assembly has committed to in the past. Now nothing in this is intended to pay for PCB remediation when PCBs are found from some other action other than indoor air testing that is required from 2021. If you're a school and you're doing reconstruction and you find PCBs, unfortunately, that is your responsibility. That is your liability. It's not going to be paid for by the state. So that that is what on page four, lines five through 15 says, except the 22,000,000 you gave to Burlington in 2023 or 16,000,000 that you gave to Burlington in 2020, that stays. That is out the door. It's been committed and you're not going to try to claw that back. And on or before 01/15/2027, ANR, after consultation with the agency of Ed, multiple other stakeholders, they submit to you a remediation plan for the long term cleanup and testing of PCBs in schools. Like, you know they're there now because you've done some of the testing and there's probably some in schools that haven't completed testing yet. What are you gonna do about it? And that's what that subsection is about. What is the long term plan? And then beginning on 01/15/2027, and annually thereafter, ANR reports to you, regarding the the progress, how indoor air quality testing for PCBs in public schools is going, the status of it, the number of schools tested, the number of schools that remain to be tested, the number of schools we're testing indicated present in excess of the school action levels, remedial measures taken at those schools, the remedial measures that need to be implemented, the amount of state funds expended, the amount of funds that remain at ANR or the agency of Ed for testing or for grants to schools for investigation, remediation, and removal, and then an estimate of additional funds necessary to complete investigation, remediation, and removal. So to summarize, no continued requirement to test by 2027. If you've already completed and you exceeded the school action levels or you're in the process of testing and you need to complete it, the state is still going to pay for that. But the state is going to have to commit to where those funds are coming from. You're gonna stop using the funds that are already appropriated for testing and dedicate them for investigation, remediation, and removal. That's probably not going to be enough. And so you need to report back from ANR about how, a, you're going to pay for the existing liabilities, and b, how you're going to go forward with a remediation plan for long term.

[Unidentified Committee Member]: You were done, right? Mhmm. Okay. So I want to be clear. Think I was clear about it. So I'm going to give an example, you're going to tell me what happens. If a school has a roof collapse, school that hasn't been tested has a roof collapse, and they need to treat infection. And in that process of doing that, they need to decide or choose to do their own testing. And they find high levels of PCV in that facility. The state will no longer pay for the testing nor any remediation at all. I want to be really clear about this.

[Michael Grady (Legislative Counsel)]: Because

[Unidentified Committee Member]: sometimes school construction isn't a choice. Sometimes it's required.

[Michael Grady (Legislative Counsel)]: Right. Because that wasn't a a byproduct of the indoor air quality testing that you required in 2021. That was a byproduct of infrastructure failure, some other failure, and your construction process going forward to rebuild. That's not a product of indoor air quality testing. That's not what you committed to fund when you appropriated the monies that So you would that school come to the general assembly, go to the whatever amount of money is left in the capital construction fund for schools and look for assistance? Probably. But they have to bond, maybe. But it wouldn't be paid for from the money appropriated for PCP remediation on the air quality program.

[Rep. Peter Conlon (Chair)]: And that's no different than it is today.

[Michael Grady (Legislative Counsel)]: ANR has proposed language, but their language is more forward going into the future. They also propose repealing the testing by 2027 for schools. And they propose that as part of any school capital construction planning process when you develop that master plan that schools be required to do testing for PCBs during that process. And then if then during that process, there's an exceedance of the school action levels or the immediate levels, And then there will be money from a new fund that would be created, special fund, pay for those costs going forward. Their proposal, other than changing the 2027 or repealing the 2027 testing, doesn't address what happens to those schools that are in the interim, that are already been tested or already exceeded action levels, already need remediation. So if you wanna go forward, this to an extent is the long term remediation plan that May requires. ANR's proposal basically is that. But it what do you do with the others? That's not addressed by ANR's proposal. Now part of this or part of the discussion is that there is ongoing litigation, already. There's a state, action against the manufacturer of PCBs, Monsanto. You asked the last time I was here to get an update, and frankly, I forgot about that until this morning. And and frankly, the AGO was very responsive and very helpful. I appreciate his response. He said the state of Vermont prevailed in Monsanto's motion to dismiss. So Monsanto immediately moved to dismiss the case as as failure to state a claim. So state of Vermont prevailed on that. They're currently in discovery and it's intensive discovery, and it's gonna take a long time. The trial is going to be in phases based on the different claims and the different aspects of each claim. And it will be held in early twenty twenty seven, and it's gonna relate to six schools and to PCB discharges into Lake Champlain and the Usik River.

[Rep. Peter Conlon (Chair)]: In the legal world, in a big suit like this, they set a court date. But that's just to sort of keep things on a calendar. That's not necessarily It's not set

[Michael Grady (Legislative Counsel)]: in stone. It can change. Discovery might take longer than expected. There's always some unexpected thing with the attorneys or with the state or with the defendant. And so it could be longer. And this is a first in the nation type of suit. So it's going to be defended vigorously. And the attorney general is gonna if they win, it'll be a big thing, and it will probably be a domino.

[Rep. Peter Conlon (Chair)]: So before we go any further, I just wanna put out there that this bill that I sponsor is really simply about an unfunded mandate. It's not about the science or any of that. I'm not a scientist, not a health expert. The only thing I can say is that when we talk about PCB, there weren't levels. We are talking about levels that the state of Vermont created for its own program. But again, this has nothing to do really with that. This is just simply taking the requirement, which is on the books right now, to test, but there's no money for that testing. So I guess this is just a, if there's not money, let's pull the requirement off the books. Could be sending school districts down a cost rabbit hole that may have no end. If the administration, in its strong support of this program, actually proposes the money the program needs, I think that that is the time to revisit it. But in the meantime, the goal here is to pull the requirement and really make sure that whatever money exists, and there's about $4,500,000 left, and for all I know, the agency of Natural Resources, they want to shift more money out of their special fund over to deal with this. I don't know, but that that money be focused on those schools that are already affected, who are incurring costs, if nothing, just in the amount of hours and manpower they're putting into dealing with this. So that's kind of where that is. So the agency and their response basically said, yeah, we're taking the requirement off the books, but then talks about in the future, if we're talking about consolidating or whatever, that it be required that PCB testing take place. I personally don't wanna go there. I think that probably because we have this state sort of set program and levels, I think there's a lot of awareness out there that schools are probably, before they invest in a building to consolidate or whatever, are probably gonna do that testing. But it's a double extra to do the testing and you find, if you exceed the state created levels, sets in place a whole bunch of repercussions. So that's where I'm on it. Happy to Do you have anything else you wanted to add?

[Michael Grady (Legislative Counsel)]: There are two ongoing litigations or ones ongoing, one ended in December that are relevant. There's a private right of action that was brought against the PCB manufacturer by about 90 plus persons and schools. And that is also in the middle of discovery, and they're set for trial in September. So the movement towards review, judicial review could happen beginning this September. And then you may not all have been here or may not remember, but a few years ago, you authorized what's called a private right of action for medical monitoring When a person has been subject or exposed to a release of a toxic substance, they have the ability to sue so that their health is monitored to determine whether or not that exposure created any potential health problems. In December, the Vermont Supreme Court said that that is available to persons who can prove exposure to PCPs, including in schools. So there's a possible There an actual decision that said, Yes, you're gonna get medical monitoring. It says, Yes, it's available to those. So that is also something to consider, that those who have been exposed and show that exposure have concerns about their health. If they meet all the requirements of that private right of action, they can get their medical testing paid for.

[Rep. Peter Conlon (Chair)]: Yes.

[Rep. Chris Taylor (Vice Chair)]: So I'm trying to wrap my head around this, the whole concept. Everybody knows I'm not the biggest proponent to ending PCB testing. I do understand the funding aspect of it for sure. But I'm trying to wrap my head around, so the schools that are known now because they were able to get tested are still online for funding if the state

[Unidentified Committee Member]: can produce the funding.

[Michael Grady (Legislative Counsel)]: You are saying that the state's gonna pay for that and they will do their remediation investigation removal if there's funding. If there's no funding, it stops. Their investigation remediation and removal stops. But ANR and AOE have to come here and tell you how much money you need to continue that and finish that. So practical reality, 4,500,000.0 might not be enough to finish all of that. You don't then put the hook on the school to continue going forward doing the investigation, mediation, and removal when they're not getting that state funding when every other school did.

[Rep. Chris Taylor (Vice Chair)]: Absolutely. And understand that part of it. I'm thinking right now by district, where I have one school that was air tested because they found PCBs in construction. So they were able to kind of bump up in the line to be able to get tested and get in the program if needed to be. But we also have another school that's never been tested. So I'm just trying to figure how this all works out. If the high school were found to need funding, they would be in line for funding. But if the elementary school

[Michael Grady (Legislative Counsel)]: Never tested, they're then part of the long term remediation plan, that is contemplated for May. So ANR is supposed to come back. How are we going to do it? How are we going to address those schools that haven't been tested? How are we going to deal with remediation going into the future? And to an extent, propose what they propose, which is going into the future. And it's part of your school construction process. If you're going to apply for capital funds for school construction and you have to do that master planning process, they're saying as part of that process, you have to do PCB test. But that's a policy decision for you all.

[Rep. Peter Conlon (Chair)]: Any other questions? The language at the top, I assume, does not stop anybody from voluntarily testing for PCBs.

[Michael Grady (Legislative Counsel)]: That is correct. This language will prevent them from being paid because it's not part of the mandate to do the testing. They're voluntarily doing it. They are not going to paid for the testing or for the remediation.

[Rep. Chris Taylor (Vice Chair)]: What's that? Doesn't implicitly say it, but it would not be very advantageous for a district to do voluntary air testing at this point.

[Unidentified Committee Member]: It's if I can. I'll just state it's not a question. But I mean, right now we have, in this state, created a high level of concern, however you want to interpret that concern, in our communities. And when school districts make decisions to change their facilities, they get approval from their communities. And if their communities are saying, I'm worried that we're investing funds in a building that hasn't been tested, I'd like it to be tested, a school district may choose to test and put themselves into that place. I just want to state what is on the table. We, in our own wisdom or not, have created a heightened understanding of the challenges around PCBs and where they come from. And we can't pretend that doesn't exist. Does.

[Rep. Peter Conlon (Chair)]: Yeah, isn't a fun bill, but it's there to recognize that I think until either the legislature or the administration gets behind putting a lot more millions of dollars into this testing program, we shouldn't be requiring schools to test.

[Michael Grady (Legislative Counsel)]: And the governor's proposed budget doesn't include any money, new money in it this year.

[Rep. Peter Conlon (Chair)]: That's right. I think if I recall the testimony, just to update everybody that we had from DEC, was that there is about 4 and a half million dollars left, and that it's probably all going to be used in one high school And that those who, I think what they also said was that all of the other schools have sort of remediated down to a level that allows them to operate for the most part. So do people feel ready to mark this up and vote on it next week sometime? We will plan to put that on the agenda so we can get things moving. Alright. And representative Taylor will be presenting the bill on the floor.

[Rep. Chris Taylor (Vice Chair)]: It all depends on my board, I think.

[Rep. Peter Conlon (Chair)]: Great. Okay. Thank you very much, Michael, and we'll get you scheduled for next week sometime. A good weekend, everyone.

[Rep. Chris Taylor (Vice Chair)]: Thank you. Thank you, Dan.

[Rep. Peter Conlon (Chair)]: Alright. Well, the next item on the agenda doesn't begin till 11:30, so we will reconvene at 11:30.