Vermont Legislature SmartTranscripts:

[Rep. Emilie Kornheiser (Chair)]: Please and means, hello. I hope everyone enjoyed their announcements. It is now 01:45 on second of the month of April, and we are going to learn all about S-two 18 and ACT relating to reducing fluoride contamination of state waters. And we are so lucky to have Michael O'Grady here to help us. Michael, it's been a while. Welcome back to Ways and Means.

[Michael O’Grady (Legislative Counsel)]: Thank you. Good to see everyone.

[Rep. Woodman Page (Member)]: Would you

[Michael O’Grady (Legislative Counsel)]: like me to put it up on the screen?

[Rep. Emilie Kornheiser (Chair)]: No, it'd be delightful. Thank you so much.

[Michael O’Grady (Legislative Counsel)]: This is Mark Higley with legislative council. I'm gonna walk you through s two eighteen. This still might seem very familiar to you because last year, you reviewed h 86 Oh, yeah. Which is essentially the same bill with some minor tweaks, but it failed to pass the Senate. And it had been s 29, then it was h 86, then it was added to h three nineteen, and then it died. And to avoid the confusion about bill numbers, the sponsor in the senate wanted it introduced as a whole new bill. And that's what s two eighteen does. Generally, it establishes a program at ANR for the voluntary training of commercial salt applicators regarding the best method for applying salt to reduce the water quality impacts of chloride while also maintaining the safe conditions of travel and pedestrian walkways. And if a commercial applicator goes through the training program and is certified, they receive an affirmative defense that they would not be liable for any damages caused to a person by snow or ice if they were following the best management practices developed by ANR. They would this affirmative defense would also be provided to municipal solid applicators who did annual training with AOT under the local roads program. Part of what would be needed is money to hire a trainer or a staff person at ANR to do the training. Currently, there's contingent funding in the bill, contingent funding clause, so there's no appropriation, but there is a requirement for A and R to report back to you with the fee, recommended fee, depending on how they are going to implement the program, either through a contractor or through A and R staff.

[Rep. Emilie Kornheiser (Chair)]: Remember that very question from last

[Michael O’Grady (Legislative Counsel)]: That is the exact language that you added to h 86.

[Rep. Emilie Kornheiser (Chair)]: Love that, how we're all learning together. That

[Michael O’Grady (Legislative Counsel)]: is effectively what the bill does. I can go into more detail just walking through.

[Rep. Bridget Burkhardt (Clerk)]: I think a quick walk through would be great.

[Michael O’Grady (Legislative Counsel)]: Okay. The purpose of this bill is to address water quality impairments caused by chloride. There are currently nine waters in the state that are not meeting water quality standards because of chloride. The way to bring water back into attainment is through a TMDL plan. But there's not much you can do for chloride other than regulate salt application, chloride application. So the purpose is to establish acceptance standards for application of salt and salt alternatives in a way that it provides for safe conditions, but also reducing the impacts of salt alternatives on the quality of the waters of the state. Then you see a new subchapter added to chapter 47 of title 10. That's the water quality, chapter. Apply salt is what it sounds like, but it doesn't include for transportation infrastructure construction projects Because those projects sometimes need to use salt in a way that's necessary to stabilize the ground, stabilize infrastructure. And so this isn't applying to to infrastructure construction projects. Commercial salt applicator is somebody that applies salt for compensation. Master is somebody who can train people within their organization about the BMPs. Salt is every version of chloride you can think of. Salt alternative is everything that is not chloride that's used for deicing and dust control. And you get a definition of transportation infrastructure construction project. Then you get to the establishment of the program at ANR. It's voluntary. It's a voluntary program. This is not a mandate for commercial SALT applicators. If they want to do it, they can do it. But ANR has a mandate on page three to adopt by rule best management practices for the application of salt or salt alternatives. And then they have to, in those BMPs address best ways to use it, most efficient ways to use it, how to prevent it from entering waters, whether and how to calibrate and monitor your equipment, when sand is more appropriate than salt, record keeping requirements, model form, and things of that nature. They offer, once the BMPs are adopted, they offer training to the commercial applicators. Again, offer, it's not mandated. Upon completion of the training, applicators designated a certified commercial salt applicator. It's a two year term for that certification for commercial applicators. But on page five, if you're a business that employs multiple applicators, you can get designated a master and then train people within your organization. The salt applicators have to submit annually a report on total winter salt use usage, so the state has an idea. It's just a a percentage of the users that are on what they are using result. Anarch can revoke a certification for violation. And then you come to the affirmative defense. This is a little different from what was in h 86. H 86 was the applicator shall not be liable. This is they have an affirmative defense, and there's a difference. Shall not be liable means that the burden is on the plaintiff to show that the commercial applicator may be liable. And so there are instances where it's when you have that kind of immunity, your immunity, for example, legislator immunity, you have absolute immunity for things you say on the floor. People can't sue you for things you say on the floor, even if they're incorrect. Because sometimes you say some things that are incorrect. And you can't get shoes for that. It's an absolute immunity. Last year in 'eighty six, that was qualified. You had to show some things, but you got qualified immunity. But again, the burden's on the plaintiff. The concern in the Senate was that you were excluding plaintiffs from a possible remedy or making it harder for them to achieve a possible remedy for their damages. The affirmative defense shifts the burden to the defendant. It's something that the defendant has to claim at pleading stage. They have to say when they're sued, yes. I did that. I applied the salt, but I'm not liable because I met these conditions and I meet the affirmative defense. The plaintiff still gets to bring the cause of action. Burden's now on the defendant. Plaintiff who was damaged still has that opportunity to seek a remedy, but it's not that that it's not an intimidation for the plaintiff to to sue, but you still give that commercial applicator the benefit of nonliability if they can show the things that they need to show. This was something that the Vermont trial lawyers requested. They are happy with the bill as it is now. And that's why it reads the way it does. So in order, so you will see that defense on page six, that certified applicator or the owner or occupant of the property that's managed or serviced by the applicator has an affirmative defense against the claim for damages resulting from a hazard caused by snow or ice, if the damages were caused solely by snow or ice, and any failure or delay was due to implementation of the BMPs. It does not apply when there's gross negligence or reckless disregard of the hazard. In order to assert the defense, the applicator has to keep records of their application, when, where, how much. Then you move out of that affirmative defense, the applicators also get a presumption that they comply with water quality standards. We've all seen salt runoff of impervious surface into waters. Technically, that can be considered a water quality violation. But if they're applying the BMPs, that is presumed not to be a water quality violation. Page eight, ANR needs to do education and outreach. They can do it through their staff. And it also needs education and outreach to both the applicators and those persons, members of the public, who are using salt in ways that they can reduce the harm to water quality, pets, and wildlife from excessive application. When this bill was originally introduced last year, there was a requirement that municipal salt sheds cover their salt shed, and that created great consternation. And so that was removed. Instead, there's a report from ANR on what salt sheds need to be covered or if they're too close to a water, whether they can be covered or whether they can be moved, and an estimate of what it would cost. It is just a report.

[Rep. Emilie Kornheiser (Chair)]: Last time there was something other than a report, right? Pardon? Last time this was here, it

[Rep. Woodman Page (Member)]: was more than a report?

[Michael O’Grady (Legislative Counsel)]: When it was introduced, H86, when it was introduced, had a cover requirement. And people weren't happy about that. Some of the people

[Rep. Emilie Kornheiser (Chair)]: in this room weren't happy about that.

[Michael O’Grady (Legislative Counsel)]: Because and I will tell you, EPA tried to do a national cover requirement about fifteen years ago, and there was a municipal revolt. People were not happy because cover is expensive. All this does is require the identification of what salt sheds, what facilities need cover or need movement and then estimated costs. No mandate. And ANR has most of this information. You need to say sand as well. Well, technically, it's it's salt salt and sand mixtures and sand. That's Sand not mixed with salt. Right. Yeah.

[Rep. Woodman Page (Member)]: It doesn't say if it's state and municipal private?

[Michael O’Grady (Legislative Counsel)]: No. This is this is, pretty much just municipal facilities. You'll see that on page eight, report regarding management of state and municipal facilities. So state facilities are all covered. This is really there are a couple that probably could be moved because of their proximity to waters. But most of these are gonna be municipal. It's not private. So no mandate. ANR already has most of this information, and you'll get an estimate of what it would cost to cover. And then section four relates to municipal applicators of salt. Those entities would also get the affirmative defense, but they would go through annual training. There are already many public works employees already do what's called the Vermont Local Roads curriculum, which is something that AOT provides annually. Part of that curriculum will now include the certification for use of the BMPs. And then the municipalities would receive that affirmative defense for their employees if there was a claim that their employees caused damages from snow or ice. And so that leads you to section 12 section five, page 12. This is the fee report. So there are programs around the country in other states that are already operating and doing this type of training. New Hampshire's probably the most prevalent one. And they started out doing it with third party contractor, started doing it remotely. It got very popular. So they started doing it with their state employees. Section five contemplates both alternatives. ANR shall solicit interest from third party vendors for the training and certification program. They recommend to you, the general assembly, a fee to be charged either by the state or by a third party vendor for certification. After consultation, they'll be also recommending what is going to be charged for municipal salt applicators. And any fee, has to come through you. The ANR can't just determine, say, they're gonna do what the third party vendor in order to cover their costs are gonna charge every commercial applicator x to cover that cost. They're not allowed to do that. They have to come get authority from you to charge a fee. Then page 12, section six is the contingent implementation. Every new program that's going through your Appropriations Committee and the Senate Appropriations Committee, where the appropriations is not in the budget, is getting this clause and will be potentially receiving appropriations during reconciliation of the budget or will effectively be paused until next year, until potential appropriations in the next fiscal. The act takes effect on passage, but there are dates that are built into the substance of the bill.

[Rep. Emilie Kornheiser (Chair)]: Any questions for Michael?

[Michael O’Grady (Legislative Counsel)]: The committee vote? Eight three.

[Rep. Emilie Kornheiser (Chair)]: Any further questions for Michael?

[Rep. Woodman Page (Member)]: Did transportation see this this

[Michael O’Grady (Legislative Counsel)]: Not this year, but to my knowledge. I thought they were supposed to, but not so far. Senate Transportation did, but House Transportation,

[Rep. Woodman Page (Member)]: not yet. House judiciary has seen it.

[Michael O’Grady (Legislative Counsel)]: House judiciary has seen it. Yes, it was in many committees last year. It's been in many committees so far. Probably will be in.

[Rep. Emilie Kornheiser (Chair)]: Any pushback from truck drivers league or anybody in the channels?

[Michael O’Grady (Legislative Counsel)]: The league has said that they would prefer the type of immunity that the state has effectively a sovereign immunity, not just for this activity, but for all municipal activities. So they want the whole pie. They don't want just the slice, but they're taking sort of a neutral view on this right now. I did not see their testimony yesterday, and that was just what was relayed to me. But so far, they have not opposed this. They are coming in and asking for, honestly, what they've been asking for for a couple of years, that total immunity for municipal employees.

[Rep. Emilie Kornheiser (Chair)]: Hit my call.

[James Duffey (Joint Fiscal Office)]: James Duffey, joint fiscal office. There's a fiscal note posted on the committee page, which I'm sharing behind me as well. So I think as you've just heard from legislative counsel, the important thing to understand about this bill as it's before you today is without an appropriation, only one thing happens because the vast majority of the bill is contingent upon an appropriation being made for those purposes. And as of now, the bill does not contain an appropriation and the budget as it passed the house does not contain the appropriation either. So without an FY '27 general fund appropriation, the only thing that takes effect in this bill upon passage is the directive to Agency of Natural Resources to develop a report on the number and location of uncovered salt, salt sand mixture, sand storage, salt alternative storage facilities in the state. If an appropriation is made to support this bill, there are essentially two buckets of fiscal impact. The first would be whatever the appropriation is to ANR and to AOT to support implementing programs. There are estimates from both agencies in the fiscal note for what their estimated costs of implementation would be. But I think of more interest to the committee is the potential fee impact from the bill. The bill as drafted would direct the agency of natural resources to report back to the general assembly. This is in section five fee report with a recommended fee by 01/15/2027 to be charged either by the state or by a third party vendor that would provide these trainings for commercial self applicator certification. The fee report, I believe, would also include a recommendation for any potential fee charged to municipal SALT applicators who would receive comparable training through AOT's Local Roads Technical Assistance Program.

[Rep. Emilie Kornheiser (Chair)]: Any questions for James? Seeing none. Oh.

[Rep. Woodman Page (Member)]: Yeah, I'm sorry, missed, I came in a little late, but the fee goes to DEC or ANR?

[James Duffey (Joint Fiscal Office)]: So the only action contemplated in this bill is the fee report. But if implemented, the fee would presumably support implementation at ANR. And then as well, potentially through the AOT's local roads program. Those would be the two agencies.

[Rep. Woodman Page (Member)]: That makes good sense. Thank you.

[Michael O’Grady (Legislative Counsel)]: James spent permanent classified position. That's if the report recommends it.

[James Duffey (Joint Fiscal Office)]: Yes, that is if an appropriation is made for that purpose. The bill would Well, Yes, sorry. There's no position authorization currently contained in the bill. Implementation of the boron contamination program would only be required if an appropriation were made. The agencies have provided those estimates that you see in the fiscal note. And yes, I believe both AOT and ANR have testified that they would require a permanent FTE to support

[Rep. Woodman Page (Member)]: implementation. Yeah,

[James Duffey (Joint Fiscal Office)]: one in each agency.

[Rep. Emilie Kornheiser (Chair)]: But no revenue impacts right now. We will get a report and learn about revenue impacts from Correct.

[James Duffey (Joint Fiscal Office)]: That would be subject to your future approval.

[Rep. Emilie Kornheiser (Chair)]: Anyone else have questions for me? Thank you so much for your service. Thank you. Why is there a fiscal note when there's no money moving in any direction whatsoever? Is it just you had one drafted from last year and it's an update?

[James Duffey (Joint Fiscal Office)]: We will typically, when we can, provide estimates for what a program would cost in an instance like this where there's a contingent section. Thank you.

[Rep. Emilie Kornheiser (Chair)]: Does anyone need anything further on this bill?

[Michael O’Grady (Legislative Counsel)]: Madam Chair. Does

[Rep. Emilie Kornheiser (Chair)]: anyone need anything further on the bill? Seeing none. I move that we find S-two 18 favorable. Representative Waszazak moves that we find S-two 18 favorable? No. Second. Representative Masland seconds. Is there any discussion? Seeing no discussion, the court

[Rep. Bridget Burkhardt (Clerk)]: please call the roll. Representative Branagan? Yes. I vote yes. It's Representative Burkhardt. Representative Higley? No. Wasn't that it. Representative Pulton? Yes. Representative Kimbell?

[Rep. Charles Kimbell (Ranking Member)]: Yes.

[Rep. Bridget Burkhardt (Clerk)]: Representative Masland? Yes. Representative Ode? Yes. Representative Page?

[Rep. Woodman Page (Member)]: Yes.

[Rep. Bridget Burkhardt (Clerk)]: Representative Waszazak? Yes. Representative Canfield? No. Representative Kornheiser?

[Rep. Emilie Kornheiser (Chair)]: Yes. The floor is a vote favorable, nine-two-zero.

[Rep. Emilie Kornheiser (Chair)]: I do remember a vote similar to vote that's left. Thank you very much. Charlie's gonna report it.

[Rep. Woodman Page (Member)]: As long as it's not transportation, it's ANR.

[Rep. Emilie Kornheiser (Chair)]: It is indeed ANR. Thank you. Thanks, everyone. We're gonna take a break until 02:30 when Beth will join us.