 Having all these things traveled together, the current proposal with the Pro Tem's office and Senator Sorotkin is to have all the active 50 related things. So that means downtowns, the trail work we've been talking about and aspects related to force, forced use. What I'll travel is an amendment or a new section of S237, the housing bill. So they all stay together. And to that, and I'm gonna speak to Senator Sorotkin and Cummings about moving the housing bill into our committee so that while we're working on it, we have the bill in hand to actually, you know, make that amendment before it travels on. So any questions or thoughts about that? That sounds like a reasonable strategy to everyone. All right. Well, with that then. Senator Bray, I did try to raise my hand. I got a brief comment. Yes, please. So just because so much of that stuff is controversial and I know what you're attempting to do is put the whole mix in and blend it. But I still feel strongly that the trail stuff should move on its own and it may be the rest of the committee doesn't but I see the trail stuff as essential not only for the kingdom and what their trail systems are going through right now but for the whole state and all the various trail systems. And I just feel that some of the other stuff is very controversial. And, you know, I haven't delved into the whole fragmentation part in what is in the Act 250 bill but I'm guessing there's some portions in there that I won't agree with as a landowner and a forest owner and I'm sure that there are gonna be problems with the administration with some of that where I feel I know that people wanna roll something in that everybody wants which I believe most people want some resolution to the trail problem but I would personally prefer to see that move forward and move quickly. I also think as we discussed earlier that there are limitations to what we can do with Zoom and I've heard many people say that there is no way to have a full discussion that the public can fully weigh in on these big issues having to do with Act 250 and some of the other implications in that bill. So I just wanted to let the committee know that that's how I'm feeling today about that. Thank you. Thank you, Mr. Chair for sharing with us how we might cover the items that Senator Rogers has just discussed in our natural resources committee. Thank you. And the agenda for today is? The agenda for today is? So turning back to solid waste I sent out a series of questions to agency natural resources plus Mr. O'Grady and to the committee so we'd all have them. And so I'd say if I wanted to boil down where I think we find ourselves is the question is does the current law and all the provisions, constitutional provisions such as enforcement, discretion, et cetera can accommodate the needs of people operating in the solid waste world who have raised some questions we brought on by the pandemic. So the ANR has already articulated a position I emailed that document back out to people this morning to make it easy to fish out of your inbox. It's agency natural resources, COVID-19 state of emergency enforcement and compliance guidance document stated March 31st, 2020. So it lays out a broad orderly response to allowing, well, I'll list who they address. Anyone who's operating under the terms of a permit certification order or rule. So I'm guessing that's all encompassing and that this order of this document applies basically to everyone in the solid waste world. And so then the question that I had sent out was and I wanted to ask the agency to respond first whoever on the team wants to go or you can all take turns. Do you believe that under existing law statute and constitutional provisions and that document I just read that ANR in combination with Vermont Department of Health has sufficient flexibility to address the concerns of various actors in the Vermont solid waste system. So that's question number one. So I don't know who on the ANR team wants to lead but the floor is yours. Mr. Chair, I'll start if that's all right with you. Good morning. Early record Peter Wach, Commissioner of the Department of Environmental Conservation. I would say that the answer is we do not believe we have the, we believe, let me rephrase. We believe that we are armed with the flexibility to meet various situations. However, because we have the opportunity for you to address this proactively rather than utilizing enforcement discretion which is a tool that should be limited in its scope. We believe it's appropriate for you if you think it's necessary and we believe it is to be prepared for a value to occur could that we think you should take action to address it. The enforcement discretion as we've talked about is broad authority but it also should be used in very specific and very limited means when in instances of a real need. Given that we are coming about this in advance of a specific request from a specific hall or facility, we believe it's appropriate for the legislature to take action if it deems it appropriate. If you choose not to, then we have the option in the future to use enforcement discretion but I don't believe it be appropriate. So I guess the answer to your question is it is more complex than the question that you have asked in my perspective. I'm sorry, I broke up on the last thing. It's more in the, could you say it again please? I'd say it is more complex than the way in which you have framed the question. Okay. So one thing if I heard you you're saying that there's sort of a retrospective side to enforcement discretion. In other words, someone, is there no way for an applicant to simply say, I believe that as of June 17th, I'm no longer gonna be in compliance with law X, Y or Z and I'm asking for reinforcement discretion for the particular reasons. And then that memo lays out the terms. You need to explain why it's valid that you're not subjecting others to public health risks and you're going to put together a program to bring yourself back into compliance. Can no one apply ahead of running outside of the compliance? I think frankly, it's a question of whether or not they have that precise information, right? They're not, I think it's gonna be very unlikely for any entity that we regulate to be able to provide us with significant notice that they are gonna become out of compliance in the sort of the broad manner in which, we're anticipating providing some flexibility. There is a, certainly, we've had requests early on in this pandemic to issue specific, in response to specific requests and that those have been limited in scope and sort of temporary endager in order to prioritize efforts in ways in which we did not think had a deleterious effect on the public health or the environment. But that's, it doesn't necessarily mean that that is always gonna be able to happen and should it happen that way. However, I think the draft language that you have put together in my mind provides a clear mechanism for that evaluation and the public to have a manner of participation in that process gives us clear guidelines as to what we should consider and what the secretary should consider in making that determination and really focuses on getting people back into compliance as quickly as possible, which is really the goal. And I think you've laid out a process that I think could work very well and provide us with direction on what to consider. Okay, ask a question. Yeah, Senator Campion, please. Trying to understand, so if we work to, again, do absolutely nothing, move on to other bills, other priorities, what is it that, I'm trying to understand, what is it that either, and this might not be the right way to ask it, Peter, but what is it that you guys couldn't do that you might need to do? And that might be too simple of a quite, that might be, as you said, too much complexity to do it, but that's what I'm trying to figure out. I feel like we've had this conversation for many, probably the biggest conversation we've had this session and I'm just still grappling a little bit and I think others are to understand what exactly we need to do here that couldn't be done. So any kind of clarification, I apologize if I've missed it along the way. I understand your questions, Senator Campion. I think you're getting to the sort of the root of the issue. Frankly, I think in the draft that's been circulated, what you do is sort of lay out the terms on which we would provide a path that Mr. O'Grady laid out for you previously, which is a variance process in order to make sure that there is public process around that variance. It gets to the end result of, but it retains your clear public policy imperative as the legislature to weigh in on this. Frankly, we could have, we could use enforcement discretion in different circumstances as it came up. Okay. Consider this for the amount of time that you've considered this and believe that no action is necessary. I think frankly, it sends a signal that it's not, that it is, there is, I don't know, that it's trying to put words on it that you have not considered necessary to consider from a policy perspective, whereas I think we're saying that it is a legitimate potential concern and one that we hope never has to be used, but as long as we're considering it, we have the opportunity to provide a mechanism for relief if it's necessary, we should move forward with that. And that's something you could not do right in, because a lot of this you could do now, right? That's what I'm still... I'm gonna, Mr. Chapman looks like he would like to weigh in. I'm gonna let my lawyer speak for me, which is always wise. I mean, I think just to try and sort of restate what Peter has been going towards, I mean, enforcement discretion is a backwards-looking concept. Someone commits a violation and the agency makes a decision not to enforce again. And I think one of the challenges that we've seen with respect to solid waste management and specifically some of the hauling related issues, there's a wide sort of series of views on what constitutes a COVID-related sort of change in management activities. So I think from our perspective, having a process put in place that would allow the agency to review specific requests for deviations from the law before they happened and lay out sort of a framed bound set of circumstances by which we tell people that first of all, we concur after consultation with health that it is a COVID-related issue and that here are the steps you need to take to maintain compliance with the law to the maximum extent possible in sort of cabining and framing those activities that we're authorizing sort of deviations from rather than having them in theory take place and then assessing them after the fact. Couldn't you do that though? I mean, what's your role right now, Matt, with the Department of Health on certain things? It seems to me, again, I don't, and again, I'm probably missing something here and I apologize, but if they're, I understand now what we're doing, what we're trying to do, but it seems like with other issues that have popped up, the administration has consulted the Department of Health and made a decision based on that knowledge and that information. Wouldn't that same kind of process be effective in this case, in these cases? Well, I mean, we certainly have consulted the Department of Health and made decisions around operational issues that needed to get modified with respect to COVID. I mean, I think, again, I think that, I guess in response and sort of, I think stressing what I think the commissioner said with respect to the nuance of it is that is this change that's being requested necessary? I would not say it sort of falls into the realm of necessity. I think what it does is it provides us, I think a more transparent, clearer path forward for people looking for deviations from the law and we think it'd be beneficial both to the agency and to the regulated community to have something like this in place. So maybe this is what you could help us with. Could you give us an example of how this might be used? Like, just give us a scenario. Yeah, let me actually like give you a sort of a compare contrast situation of how enforcement discretion. And so I think one scenario is that an individual makes, so if we're dealing in an enforcement discretion scenario, let's say an individual makes a determination that they have sincere concerns about collection of organics presenting a greater risk to their operators, haulers, and they would like to basically not do that during the COVID crisis. And we don't currently have any information by which we can reach the conclusion that that particular activity poses a greater threat than the collection of trash. Under an enforcement discretion scenario, someone could not comply with the law, notify the agency and then we would be evaluating whether we do or don't take an enforcement action associated with it. Under the variance scenario that is out there, that person would come in advance of actually undertaking the non-compliance and ask for a determination by the agency as to whether this was acceptable. I think there are two benefits to us. One is that we could clearly articulate whether it is or isn't acceptable under this. And the other is it gives us, I think, more ability to condition under what circumstances the non-compliance is acceptable and to the extent that we can develop conditions with respect to a variance that allows non-compliance that addresses the public health or operator concerns that exist but still maintains the broad base of public policy compliance. I think that's beneficial. And in your decision making, you would likely, I suspect, if it were about organics, which we've heard about or recycling, you would consult the Department of Health and say, hey, is this, because again, from what I've heard, we are working hard to make sure haulers and others are safe, they're protected, they have masks, but we have not heard anything yet, I believe from the Department of Health that picking up organics or recycling or continuing to pick up trash poses any human health risk. So Senator Campion, I would interject slightly. Please. We have been in ongoing conversations with the Department of Health throughout this. Yeah. And picking up of all things is an increased risk. And they are there as an industry, as a hauling industry and as solid waste facilities, they are at increased risk based on contact with the rest of us, right? Both in terms of the materials we're putting out and in coming to our homes. So that piece has never been a question. It's a question of increased risk. Right, absolutely. Other operate. Right. No, absolutely. Yeah, so just like the grocery store clerks, everybody, you touch something, nurses, doctors, haulers, grocery store folks, everybody, as you're going about your day to day life, of course you touch something, you interact with something, that's the risk. So how do we minimize that risk? The grocery store piece is actually telling because if we think about what the action, the sort of first request we got for some flexibility was around the bottle bill. And whether or not grocery stores could concentrate on stocking shelves and making sure they had enough staff to keep us all fed in and all of the things that we need to survive. Yeah. Rather than concentrate. And we said that's a reasonable approach in this moment. And it's a sort of similar instance if we ended up with a situation where a hauler or a facility had a significant outbreak within their staff and they couldn't manage, couldn't do everything that they normally do, what would we ask them to prioritize in that event? And this gives us the ability to prioritize that work and put conditions on it and help them get back into compliance as quickly as possible. And that's I think a sort of good indication of why a process which gives a sort of clear sideboard so the effort is helpful. If someone were to come right now with a complaint within the agency or a concern, what would go into effect? What process would go into effect? For example, if someone came and said, they're dealing with again, something in your jurisdiction and they're concerned about additional exposure, additional content, what sorts of things would you guys do in those circumstances to actually sort of assess and make a decision? So let me go back to the hauler. If a hauler were to come now and say, hey, this is my concern, I am concerned that X, Y and Z is happening and can you all look into this to make sure that I am not putting my drivers, their families, others at a greater risk, what would you do? Well, we've been working sort of, I think across the solid waste world has been thinking about that very topic, right? What is the PPE that needs to be in place? What are the practices, et cetera, that can help minimize? I don't think those are necessarily different for haulers than they are for any other frontline community, their frontline workforce. I think that's not necessarily the question that we're getting at it. It's a question of if in the event that those systems fail us, right? That we're not able to avoid an outbreak within that workforce. What do we want to make sure that the hauling community is getting done or a specific hauler who's having the issue to make sure that we're maintaining our effective waste removal system? Okay, thank you both. The quick question is, you just referred to the bottle bill and how there was a need for flexibility so that people could be out stocking shelves, not handling bottles and make sure that there was no staff shortage. So that seems like under the current, well, actually I don't think this March 31st guidance document was even promulgated yet when that happened, but the agency was able to respond and bottles that no one was judged to be out of compliance, things kept going, people stock shelves till they saw that everything was running fine again and then Redemption Center started operating again. So, I mean, that specific example suggests to me that you do have a way of working with the community you regulate in order to get these kinds of things addressed. And that's why I'm a little puzzled as to why we need to do something different than what you've already demonstrated that you can do. I don't see what the fear is. Could he answer the question, please? Thanks. Well, Brian, you keep piping in and not waiting. All we wanna do is have the answer to the question. What's the difference? Well, because I called on Senator Campion then I had a series of questions. Now, Senator Campion is answering your questions now. Is that why he was piping in again? I'm asking to have the question answered by A&R rather than you, thank you. It's just, I'm looking for an answer just to reiterate. It seems as though what happened with the bottle bill and Redemption Centers demonstrates that you have a workable system now and I'm trying to understand in what way it is insufficient, thank you. And then Senator McDonald next. Sure, the answer to that question is pretty simple. We were responding to an emergency need where we didn't have an effective process within the law other than enforcement discretion to deal with it. What we're saying is that in advance of that situation happening again in the rest of the solid waste community let's put that process into place. Senator McDonald. Mr. Chair, part of this discussion is Groundhog Day. We've, every two years we come up and ask ourselves whether the law that is in effect will actually take place. This year it's a little different because of the COVID virus. What we learned last week was that solid food waste was gonna be picked up one way or another. It's either gonna be picked up separately or it's gonna be picked up in the same bag with other stuff. I don't often like to dwell on anecdotal stuff but the last three weekends I have taken my Saturday mornings and gone to four different transfer stations. And I will report on three of them where I spent the most time. In one of them, people were the facility operators or gloves or masks, kept distances, didn't exchange money or cash. In two of the others, the people operating the trucks, the packed garbage were, and one they were changing cash back and forth, no gloves, no hands, no plastic, nothing. And in the third district, they had a system where people had cards that were punched and you punched a card for each bag that you put in the truck. But there were no gloves and those operators were not wearing masks and the people who were holding the cards and getting them punched were as close as you had to be to do that. Last week, we had testimony from some of the haulers that their people were all following the protocols that had been set forth. Last week, we were also told that the haulers on their own initiative had stopped taking couches and electronic wastes. And to me, this senator, that those decisions seemed to be prudent and be justified under the current situation. And I have no fault of the administration if they haven't gone out and said, you ought to be picking up those couches and you'll be picking up that other stuff, that that's working. And I have faith that the administration will administer the law that takes place on, that goes into effect on the 1st of July with the same diligence and common sense and hard work that they have exercised so far. I would hope that the, some of what I saw in the various areas that on the last three Saturdays, worries me. I spent my time there with the mask. I wore gloves. I didn't lean on any equipment. I didn't touch anybody. I didn't help old ladies put their trash in the back of the trucks. And that's what we were told in testimony here a few last week, isn't what I saw going on. And I think the administration, it will be working the best that they can and speaking to the haulers about that there's some work to do. So I'm asking the chair at this point that we have a decision to not do anything let the administration continue to do the good work it's done and the challenging times that we're in or to intervene somehow and change the law. And is that what we are, Mr. Chair? Yes, yeah. I mean, the opening question was is the status quo sufficient to provide the kind of flexibility that will help the solid waste system respond to the COVID pandemic. And we have you, Mr. Chair, I asked our legislative council to kind of make a document or a statement on the things that we expect the administration to deal with in good faith during this time of our health emergency. I know, well, I think the closest maybe that I've come to some document along those lines might be that Mr. O'Grady prepared a document about a week ago that he shared with us that laid out different forms of what I suppose you could call flexibility. So there was variance language, there was information on enforcement discretion, et cetera. Thank you, Mr. Chair. And perhaps the, when the time is right and proper, I'd like to just understand what's in that a little more carefully. And you, Mr. Chair, may give us some options on whether or not we would read that into the record or that we part of our report that we believe that those things are appropriate and should take place during this COVID emergency and we feel confident that they will be. And that takes the administration off the hook from having to appear that they're out over there, their skis on something. So I look forward to what you would recommend that we do here after my other senators on the committee have asked questions. Thank you, Mr. Chair. Thank you, Senator McDonald. I have a question. I guess Mr. Commissioner Walk referred to it as well as Mr. Chapman, sort of the backward-looking aspect of enforcement discretion. And given that you've published on the 31st of March an enforcement and compliance document, that seems prospective. I mean, does not the solid waste world receive such a thing and attend to such a thing? I mean, it seems as though I get the fact that you literally can't be out of compliance until you finally are. But if someone's telling you in advance how you're gonna make judgments and what kind of latitude you see, then I'm just sensing that it's not quite so passive as to say that we have to wait for someone to be out of compliance then to ask for enforcement discretion. If you articulate in advance that you're planning on taking that approach. So let me speak and then I'll hand it over to Matt. I think this is one of the sort of philosophy. If we want to use enforcement discretion for all issues then it can be reasonably assumed to occur. Then that's an option. That's not one that I think is appropriate. And we have the ability to create, as Matt said, a process that allows us to put conditions on things that we don't get to in the description. We have published that document that does provide the stories of putting some condition around it but there wouldn't be specific to the activity that's being requested to have a variance on them. I do believe that it's worthwhile to have that process. Mr. Chapman, anything you want to add? I mean, I don't know that I have a lot to add. I think looking at the March 31st document notwithstanding the fact that it is a general articulation of the agency's policy with respect to enforcement discretion, it still requires a review of an individual case sort of later in time. We normally try to avoid specific fact-driven determinations before non-compliances has taken place as a part of exercising enforcement discretion. Any other, Senator Rogers, do you have a question, observation? Yeah, I have several questions and observations. Number one, I don't know what harm the committee thinks it would, what bad could come out of giving the agency a little bit of flexibility. It is my guess that we have not seen the last of this virus. The health department has come out with a document that says COVID lives on plastic and aluminum up to five days, cardboard up to a day. These guys are in the thick of it. They're going down the street touching everybody's refuse. Senator McDonald said it was Groundhog's Day and I agree. We've been talking about this forever and quite frankly, I don't need any more information. We're discussing the same thing over and over again. And if the committee is not willing to give the agency the flexibility that the hauling community is asking for, then we might as well just take a position right now and stop wasting time. If the committee read the email from Cheryl Franklin, I think she probably explained it as well as anybody that I've heard. And, you know, Senator Campion keeps mentioning the Department of Health. Well, I thought Senator Bray that you said you'd been checking in with the Department of Health. So I would like to know what correspondence you've been having with the Department of Health as to what issues are around picking up solid waste. All right, I'm going to, I'll have to be a little tricky for me to multitask and get. So while we're still working, I'll call up the last email I have from Mr. Englander. Well, it's just the Department of Health has clearly taken the position that there are dangers. We know that this virus could come back so far. We've been fairly well protected because of our rural communities, but we know all's it takes is one person to come into a rural community and it takes off. And if there was no problem, then why are we allowing them not to pick up couches and mattresses and freezers? There's obviously something going on. And so I don't see what the committee's resistance is to giving them a little bit of flexibility to work with the Holland community. I just don't get what harm can come from passing the proposed language. They wouldn't have brought the language forward if they didn't think it was needed. Okay. Anybody else at this moment? I also want to stick to what I published, you know, as questions. I had asked Mr. O'Grady on our own behalf to look at that same question. Do you believe that under existing law statute, constitutional provisions and our government health have sufficient flexibility to address the concerns of various actors in Vermont's health health system? So it was the same question to both ANR and to our own council. And we've heard from ANR. So I'd like to invite Mr. O'Grady to join us in the conversation and address that same question, please. So I do think as you've all been discussing that the agency has multiple tools to address certain situations. However, those tools may not be appropriate for some of the scenarios related entities or issues that are arising due to COVID. And enforcement discretion is broadly categorically subject to that. Prospectively. Has been held by courts to be undermining the legislative law. The document that the agency issued in March, clearly states that it's a guidance document. Not a policy. But the criteria and how it will apply enforcement discretion. If there is a violation. I don't think that document itself was a violation of enforcement discretion. It was just letting out the related communities how it would go forward with enforcement discretion if it arose. And I'll give an example of where I think there may be some holes in the existing authority. For example, there is variance authority. But that variance only applies to solid waste facilities. And the agency takes the position that it only applies to rules and not to legislative directive. So if you're a commercial waste hauler and that variance authority doesn't apply to you. There's a waiver provision for commercial waste haulers. Most of this one is dependent on your solid waste management plan. And your achievement of cycling goals. Well, that's really not relevant to a COVID health emergency and the issues that might be applying to you. So you might not qualify for that waiver. Or you may qualify, but it may not be applicable to your current situation. And then that commercial waste hauler could say the agency should apply enforcement discretion. They would have enforcement discretion. They would have enforcement discretion. And the agency would have enforcement discretion. And as Matt referenced earlier, they would have to wait for a violation. And then they would have to apply it on a case-by-case basis. And that's the most appropriate use of appropriate enforcement discretion. And the agency would be asking how and whether they're going to enforce discrete violation of the law. And the agency would be asking how and whether they're going to apply it on a case-by-case basis. But individuals related entities are saying that they won't be able to comply with the law. And they want more time. Enforcement discretion probably isn't the appropriate tool in that scenario. Because you're basically saying that the agency can use its enforcement discretion to categorically change the law. That's really not an appropriate exercise of enforcement discretion. A beverage container redemption. Exercise of enforcement discretion. As I testified when that was rolled out. It was probably right up against that line. Probably was, it was a categorical exercise of enforcement discretion, not based on a violation, but based on a public health risk. But I said at that time that I probably think a court wouldn't find the agency in violation because they were responding to an imminent threat. The agency actually does have the ability to move to waver in certain situations. And if they had really strained, they probably could fit underneath their rules. They didn't try to strain. They just exercised what they thought was an emergency imminent threat authority. The court would find a violation there. I think we'll probably recommend that a little bit. But here you're further from the public health threats. You're further from that imminent threat. The agency is saying that handling of solid waste is a threat, but it can be maintained or controlled the same way that solid waste risks are controlled every day for any other buyers or any other public health. So, but you have a community that are regulated entities that are saying that they, that they need relief. And now it's a policy decision about how you provide that relief. You say to the agency that provide that relief on a case-by-case basis for enforcement discretion. Or see if some of those regulated entities qualify for a variance or a waiver. Or do you give the agency some additional authority for limited time period and for limited conditions with certain material attached to it? I think those are your options. I don't know if you need anything more from it. All right. Well, I suppose if I were to boil it down to sort of a lay question. Do you, I understand the difference between articulating a policy and a process that would actually be more clear, transparent, engaging public than the current enforcement discretion process. So I could see a positive side there. But are you also saying that there are instances that are either arising now or likely to arise or may arise that we want to provide for that enforcement discretion does not adequately address. And therefore, well, I'll leave it, I'll stop right there. You know, we so-called have holes in our ability to respond under the current set of rule statutes, et cetera. If you want to address an issue categorically across the board for all regulated entities, enforcement discretion is not the appropriate tool. If you want to give the agency variance authority over discrete issues, the current variance authority is not, is not capable of addressing commercial waste haulers or solid waste facilities when the variance is statutory, variance to statutory requirement as opposed to a rule. Okay. So I think I think that there are, the agency has to put those tools, like they are not appropriate to deal with all of the scenarios that are arising right now. Okay. So then thank you for that. I'd like to pause and ask the committee, are you interested in considering language? You know, there's been a, because it's been unclear where we would land on this, and I was trying to make sure that we had the ability to respond today, and I hope maybe act and conclude one way or the other on this business today. I asked Michael to work with A&R in the last two weeks, actually, there's been some back and forth, and I've weighed in on it, trying to look for the most constrained process, you know, possible. So we, we maintain our programs while also maintaining public health and safety for workers in that program. So our people in the committee open to looking at some language that's been under discussion. Mr. Chair. Yes, Senator McDonald. What's the vehicle and the format in which that any such language might appear and be sent forth? Okay. Well, so I'm going to, we don't have the normal, because of Zoom, we can't do the literal hand out of a document and posting it. But it would be. If there were consensus that such a language was needed, where would it go and then what form would it be? Would it be in there? Okay. So I just, so I'm doing the equivalent of handing out a document and Mr. Grady has it as well. I just emailed everyone. I'm sorry. The question is, is this a bill, is it committee bill? Are you attaching it to something? What is the vehicle for which you will make it to the floor? Sure. Thank you. So we have two, two, seven, our, our plastics bill currently dormant in finance, but was completely finished. And I don't think finance is going to be doing anything to it. Cause it's really, there's not impacts on revenues of the state. So I would ask finance to, and rules to let that bill out of finance come to the floor. And move a new section within it related to variances. And now everyone should have in an email, the last version, the most recent version of some draft language. And I would ask Mr. Grady to walk us through that. And I would also like to, just so that everyone is all, we're all looking at the same thing down in that lower right hand corner where there's a ledge ID. It's three, four, eight, two, eight, eight, V one, drafting request 2.1 timestamped 519. 20, 537 PM. So I give people a moment to locate that document. So I'm going to share it on the screen. Oh, great. I forgot about that modern technology. Thank you, Mr. Grady. And let's just walk through that. Thank you. Hold on a second. All right. Can you see it? Yes, there it is. At least on my side. Hopefully everybody. Yes, I can see. Okay. So this would, in session law, establish. Generally this establishes in session law, a variance authority for solid waste facilities and commercial. Waste haulers. From the universal recycling requirements due to. The declared state of emergency from COVID-19. So you'll see in subsection a. A solid waste management facility or hauler. May apply to A and R to issue a variance to one or more of the following requirements as a result of the declared state of emergency. Due to COVID-19. So they would be able to ask for a variance from the requirements for solid waste management facility to collect mandated recyclables, leaf and yard residuals and food residuals separate from solid waste. A variance from the requirement for commercial haulers to offer collected. Offer to collect mandated recyclables and residuals separate from solid waste. Or a variance from the prohibition on a landfill disposal by a solid waste management facility of mandated recyclables, leaf and yard residuals or food residuals. And you get the criteria for issuing the variance. Secretary may grant the variance on defining that it will not endanger human health or safety. Compliance with the requirement will produce serious hardship. Something just happened. Serious hardship to the applicant without equal or greater benefits in the public. Inability to comply with the requirement or the difficulty in complying is attributable to COVID-19, including personnel shortages during the declared state of emergency due to illness or contractors or labs. Operating due to not being designated as critical during the state of emergency. Secretary shall include the following and any variance issued under this section. The requirement that the facility or hauler comply with the relevant requirements. It is sought for which the variance is sought to the maximum extent feasible in light of the hardship. And if compliance with the relevant requirement is not possible. The authority of the secretary to impose conditions that require the requirement to comply with the requirement is not possible. The authority of the secretary to impose conditions that require an applicant to return to compliance as soon as practical or according to a schedule of compliance issued by the secretary. And then prior to issuing a variance, the secretary shall conduct a public business in comment according to the requirements of 10 BSA 7716, which is the default, some of the default requirements for notice and process. The decision is made by the secretary or reviewable by the environmental division. So there's an appeal right. A variance shall be issued for not more than 60 days. And upon request of the facility or hauler, maybe renewed in the same manner as an original application. And if the secretary grants a variance, secretary shall notify you. And give you a copy of the variance with the notice. So that's the proposed language. Thank you. Thank you. Any questions? Question, Mr. Chair. Senator. Yeah. I've. Thank you for the presentation, Mr. O'Grady. Does that mean that this flexibility that is in the document you shared with us will be in effect for as long as the state of emergency for the COVID virus takes place and for up to 60 days after. The emergency has been. Declared. Over. Is that what it does? So it's, it's, it's for a result of. The state of emergency under title 20. So it could be the current. State of emergency or it could be a future state of emergency. Due to COVID. And then it would, would apply the state of emergency. Say the variance is granted today in the state of emergency and tomorrow. I still think the variance in the 60 day provision would apply beyond the end of the state of emergency. So. Senator McDonald. I'll be back as soon as possible. Thank you. Mr. Chair. Yes, sir. Floors yours. So, so. If this is tied, if this language is tied to the state of emergency. And when the state of emergency is over or. Reinstated. I have to, I have to step across the hall into. Senate transportation for a few minutes. I'll be back as soon as possible. Thank you. Thank you very much. Senator McDonald. I'm interested in that. And I'm excited. For the reasons that we're under one now. And. When the state of emergency is over, there's 60 days for. The haulers and others to comply with. The statute that takes effect on the 1st of July. I would entertain. That proposal. of the rules committee to allow it to move forward. And I would ask that we not, I don't know if it's appropriate to ask the rules committee, but this not then become a vehicle for all things having to do with solid waste and that amendments to it should be technical corrections to carry out what we're proposing. Under those circumstances, I think in the Zoom world that that would be a course that I could endorse. And thank you. So I think, yeah, I think wondering if we share the same concern that we have a document here that now, or at least my concern is that every solid waste bill could be attached to this when it comes to the floor. And I don't know, I think legitimate concerns for people taking these steps. So I don't know how to stop that, but it certainly created a vehicle and it's been a long and lengthy discussion, discussion, but one that I also don't want to see quick policy made on the floor about these kinds of things. Okay. I just want to make sure I understand Senator McDonald's point first. So thank you, both of you. Senator McDonald, we had a settled bill 227, which is currently in finance. Are you saying that it's fine to ask rules to release 227 with the understanding that we will also bring this amendment on variances to that bill and move it since it's a solid waste bill by nature already? Or are you saying you want to see the variance language travel solo? Mr. Chair, I'm prepared to use I would I would be open to using any vehicle that was appropriate and available. And we have since the COVID, we have said if it's a COVID bill and it is, there's a unanimous support or understanding that when it comes out, it's not a vehicle for all sorts of other amendments that I would argue before the rules committee that it should come out under the circumstances. Okay, we're in new ground here and that I would like to put the guardrails around that night for the reasons that we have explained. So that's what I hope we could achieve. If that's our goal of the majority of this committee, then we can craft a way to perhaps achieve that goal. Okay, well, I think the appropriate guardrails would be helpful. So that we didn't, for instance, get to the place of being on the floor and having a lot of amendments being offered. I think we'd have to have an understanding in this committee with the rules committee. And then I would be happy to work with the majority leader, for instance, and the pro tem to say we're agreeing to move this as a, whatever, controlled package. And we're not, we have an agreement amongst ourselves, not to saying now we're going to open the door to anything else that someone wants to bring. Well, I would appreciate you doing that today and have his vote. So we can't really do anything until we actually get it out of rules, but this is an agreement that I really, I really believe you need to have with the pro tem and in others. So that we know that we are all in agreement that we're not going to make major policy changes. Right. Right. So that would be, perhaps would come up at an all Senate caucus that, and ask our other senators that we prepared to move forward within these boundaries. And if so, if we're prepared to move forward, that we do it with those guardrails on it. This is different than the standard. Senate rules and procedures. And the fact that the, the fact that we're not going to make major policy changes. And we need to go forward with an understanding that it would be different. Okay. Well, thank you. So. It sounds like procedurally we, we have a place where people are agreeable as long as we set the right guardrails in place. So we're going to move forward. Senator Rogers is not with us. And I don't want to. Right. That is unfortunate sense this on this yet, but that's, I would wait. To hear from them, him before. Sallying forth, Mr. Chair. Word to the wise. Okay. Well, so there is a little bit of homework to do, even if this is the language we're moving. And. So thank you for that help on figuring a path. Now I would like to just turn back to the language with Mr. O'Grady. And ask a few questions. One is in terms of. I'm on page one of the document. And then there's a, in B. And there's a question about the term, the term, the term of the word, the term of the word is a term of the word. Hardship to the applicant without equal or greater benefit. To the public. So the question I have is this term, serious hardship. I don't know if that's a term of arch. Or if it's not infrequently used in. And our language or elsewhere, but. It seems. I just wonder what does that mean? And how is it determined that a serious hardship has actually happened to the applicant? Do you hear me? Yes, thank you. So. That language was drawn from the variance authority and 6613. What constitutes a hardship is going to be up to the agency. And documenting. I would. Think that the agency hopefully has precedent for what they want to do. But I don't know personally what that person. Okay. Commissioner Walker or Mr. Chapman. Can you weigh in on serious hardship and how you make that determination? It seems like. So, I mean, we've historically, it's a, it's a fact specific exercise that takes place in the context of, of a variance application. What the, the applicant would need to demonstrate is, is the, what that basically the, the impacts of COVID on them are producing a, a hardship that is significant. And I think in this particular instance, we would, you know, historically it's been more of the financial burden of compliance with a particular rule is excessive in light of the circumstances. And I think this is probably going to be more operational in its nature and that, that employees are going to be put at a significant risk. Or something to that nature. So again, I think it's, it's hardship is going to be analyzed in response to the specific request that we get in. But I think it's going to be in light of the sort of framing of this variance language largely towards worker safety and the compliance and hardships on, on worker safety with respect to implementing the requirements. And based on past experience, do you feel like this is useful, useful language like where we're giving you criteria, a criterion that you can sort of work from. It is, I mean, this is when we have experience with, and we've used in other contexts, and I think we can draw from, from that history and, and implement the process that you're laying out here. Thank you. And then my next question for Mr. O'Grady is middle of page two in section C sub two. That begins with if compliance with the relevant requirement. So I'm just scanning that sentence and it says is not possible. The authority of the secretary of natural resources. And then does this just read, right? I mean, that it says to impose conditions as it, I'm just trying to make sense of how to read that sentence. It seems like maybe the word shall impose conditions. That require would be inserted there, not to impose conditions. Okay. Yeah, I missed reading. Yeah. There's a phrase missing there. And I'm not sure when it disappeared. I had this edited overnight. And I got it back. Literally two minutes before nine o'clock. I think the editors might have removed a phrase. And they probably should not have. Because it wasn't just a compliance with the relevant requirement. It's not possible. I need to go back and see what the editors did to this language. I think they removed the phrase. Okay. Great. It just, thank you. So we'll flag that for tuning. And then if you can please explain in a sub D just below. Okay. I have a notice and comment according to 10 VSA 76. 77 16 type five. I know there's different types of notice and comment. Can you please remind the committee. What type five notice and comment entails. Sure. Hold on a second. You have to follow the type five. Procedures. Okay. So we, and Matt, they want to correct me shall provide notice of the final decision through environmental notice bullets in. Matt is there's something. Is there actual notice under type five? So type five is our emergency permitting authority. So it's, it's intended to encapsulate those types of activities. Right. It's basically. We provide notice of the final decision. To the public. There's not a notice and comment process. And I think when we, when we proposed edits back to the committee, I mean, I think we as the agency thought it was important. That we're transparent with the decisions that we're making. And also that there's a judicial review route. So again, I think it gets us the ability of someone is in a. A situation where they need a decision from the agency properly, we can make it. And then there's a review after the facts. Okay. And what, um, The. Published notice of it. Does it explain the, you know, you provide facts provided by the applicant, your analysis of them and, you know, basically the decision for your review and decision making. I mean, the decision needs to have the facts sufficient for which the legal conclusions are based on. It needs to follow the general requirements of, of chapter 25, you know, three VSA chapter 25 on how you, you make a decision. Um, so. Um, uh, a succinct set of facts sufficient to support the legal conclusions drawn by the agency authorizing the variance. I guess since it's appealable, there'd have to be enough. Explanation included to have the basis for an appeal. Sure. And I, and I imagine we would, when we make a decision post both the decision and any application materials and correspondence, the agency went through. Um, and I think that's a good point. Okay. Then in the next section, I'm on page here. Mr. Yeah. So, um, how my question I'm trying to understand is how would this be different from simply saying, um, The. Agency shall achieve this by rules by rule. And with full knowledge that an emergency rule would be promulgated to carry this out. And. Um, I think that when the, when the crisis, the environmental, excuse me, the COVID crisis was over that rule would expire 60 days. Within 60 days. What's how is having this done by rule. Any different than what's proposed before us. And the only reason I'm asking the question is. Might. Um, I'm asking the question by rule. Be simpler for all involved. Thank you, Mr. Do you want me to answer that? Uh, yes, please. Thank you. So emergency rule, there has to be an imminent. Peril. Um, to human health safety or. I can't remember the third criteria. Um, So. And the rule would apply. Most likely categorically. The language in front of you is not categorical in nature. You still have to have a facility or a hauler. Individually apply for. A variance. Um, so those haulers or facilities that want to continue in public health safety. Uh, and those that can't, because of the hardship. Can apply for a variance and get a delay. Uh, because of the COVID-19 virus. Does that answer your question? So it's an imminent, imminent peril to public health safety or welfare. So. In the. If, if either. The one just recently suggested were to take place in both cases. Would the variances being discussed expire 60 days after the end of the. COVID. Um, emergency. It would expire 60 days after the variance was issued. Or some. Shorter time. Because 60 days is the max. Okay. So. Okay. And it, when it expires, can the agency. Under the, what's proposed to us before us now. If the COVID emergency is still going on, could it be then reinstated? While the emergency was in place. The language allows for a renewal of the variance. Yes. Okay. So it's. It's unlimited in time until as long as the. Emergency is in place. And when that. Emergency is over. Within 60 days of that emergency being over. Whether it's by statute or by rule. We could. And that practice. Is that correct? I think. The answer to that is yes. But I'm not quite sure what the question was. I think you're asking. The question is, would it be simpler, easier and be less prone to. For the agency to do it by rule or would be to, for us to be very. Specific in the exact language that we have before us. That's my. My only question. I don't know what the answer is. And maybe you will tell us that it really doesn't make a difference one way or another, or maybe you'll say that there's a reason for doing it one way as opposed to the other. Thank you. You asked me if it was easier. For the agency to do it by rule. I think it would be easier for them. To do it by rule if they wanted. To categorically delay it. If it was, if they thought it was an imminent parallel to public health safety or welfare. So I would now want to hear from your administration, whether they welcome that alternative approach, or whether they wouldn't. And I would probably defer to the answer to the question. So I would just put out, Senator. And I, I mean, this is, I think in a discussion. I have always interpreted our rule make emergency rulemaking authority. It's still as still requiring us to actually have the underlying. Authority to adopt the rules from a substantive perspective. So for example, I could not adopt. I have always interpreted that as meaning. I cannot adopt a rule that would otherwise. Negate a statutory command. So it would still say, for example, it would need to be in compliance with statutory requirements. So, so I could not expand the variance statute by rule in a way that is inconsistent with statute. Though I could truncate the rulemaking process in order to adopt something that is consistent with my statutory authority faster than the normal sort of rulemaking process. So it's unclear to me whether we could do what is being discussed here through rulemaking. I thank you for your answer. I will withdraw the, I will no longer ask to pursue that avenue, unless the administration, someone else jumps in and says, yeah, so thank you very much. Thank you, Mr. Chair. Thank you. Well, and so the center McDonald's a good question. And the part of the point of the way that this is drafted is it does require an applicant. To come forward and identify a situation that they want a variance for. So the idea was that we wouldn't have broad changes, but we would have case by case changes to address particular instances of hardship. For a limited period of time during the COVAS. Okay. Thank you, Mr. Chair. I do have a question of one more about. Section C on page three. And I have to grab a battery charger because I realize I'm heading off the battery cliff here in two more minutes. So, but. Section C, there's the section on renewal, please. So the question is, it says it may be renewed in the same manner as the original application for variance. Can you just explain literally what that would, how that will be interpreted? Does someone need to reapply? You know, they are, they have one now and stay 55. They feel like they're in the same boat they were in on day one. So they apply again. Is that, or can they call you up on the phone and say, Hey, we would like another 60 days. So I don't know if, if the question was directed to the agency or to let's counsel. I would say that my interpretation of the language is that. That an applicant needs to demonstrate that the. COVID related issue that caused the non-compliance is still in effect and warrants. The variance being reissued and that we would then. Review that. And make a determination based on what had been provided. I don't know that we've, I mean, there's, there's likely going to be a number of things that are similar between those two applications. And, and probably could be incorporated by reference or just referenced by the applicant, but I think we would probably be looking at them to provide. Sort of a continuing basis for the underlying. Hardship that, uh, That was the basis of the application. Okay. Um, the, the other question I have is just in terms of, uh, In the context of, um, Uh, In the context of, um, In the context of, uh, The, The, the, the, the normal practice is, you know, I was thinking, um, Allowed with Mr. O'Grady when we were talking about this, uh, The legislature is currently in session, but, um, If there's a flare-up in October, November. Uh, I'm actually hoping we're not still in session. So the idea was that it wasn't just a one time. Variance. excessive paperwork on everyone's part, you know, like starting basically from scrap. So at the same time, we don't want to be overly permissive. So, in your opinion, does this strike an appropriate balance? I mean, I think it gives the agency the ability to make this. I don't see this as being an extensive sort of application process for someone. And I think that they, the renewals could be even more truncated than the original application. Right. Well, that's my set of questions for the language in front of us. I don't know if other committee members have other questions on what we're just read through. Senator Rogers, you've returned to the room since we walked through this. I don't know if you've pulled it up and done a read through, but basically it's, it's the, it's the various language you saw in an earlier forum, I don't know, 10 days ago. And I worked with Mr. Grady and A&R since, and so we just went through draft 2.1 while you were out of the room. And do you have any questions on it? Have you had a chance to look at it? From what, from what I've seen, it looks okay to me. If it were, if it's something that the agency says will work for them, I'm fine with it. Okay. So then we also had a procedural conversation while you were out of the room. And that was, we, I think what we're looking for and what rules has been looking for, leadership has been looking for, is to have orderly process on the floor, because we're a little bit hamstrung, frankly, by Zoom sessions, right? So we're, I think we're looking for an agreement amongst committee members, if we're going to support this kind of language and bring it to the floor on 227, our solid waste and plastic bill, that it would, we would agree ahead of time that this was the body of work we were moving and we wouldn't then bring additional amendments to the floor to put on that bill. So I don't know if that's, you can make with your colleagues and Senate natural. Yeah, I have no problem with that. Okay. I quite frankly think that these few little emergency tweaks are all that we should be doing and we should close down the session, because this really is not a conducive method of public meetings or getting business done. It's, it's very challenging. So yes, I'm fine with that. Okay. And Senator Parent, I see your back. I know you had a step out for a call. I don't know if you are also in agreement. When I go to rules, for instance, I want to be able to say that Senate natural resources is going to hang together on this one. And this is the bill, this is the proposal we're moving. And we're not going to seek further amendments. Yeah, I'm fine with it. Okay. All right. So if anyone has any further questions for council, our council or A&R's council on the language, if not, then I think I would look to a member of the committee to move to amend S227. So that's fine, but I just want to make sure you're not changing your mind. I thought you needed to touch base with the point of office and have conversations. Sure. You're right. You're right. I'll step ahead of myself here. I'll check in with leaders, but make sure we have a clear path before we move to amend. So thank you for reminding me of that. Okay. And just so you know, Senator Gray, I am on the road tomorrow. So I may have tomorrow morning, so I may have phone reception, but I won't have Zoom reception. Okay. Well, as you're... Okay, so thank you for telling me. Right. We'll still have a quorum. We'll hope you can join us, but if we have a quorum, at least we can take action with the permission and rules before any kind of vote. Mr. O'Grady. I just wanted to note that Matt made a good point to me via email. That's a whole provision we need to go into effect on passage. So how you would do that depends on the vehicle, whether it's going to be the 227 or if it's going to be a standalone committee bill. Okay. So for the moment, can you draft it for 227? Sure. Is that a strike all, Mr. Chair? Oh, you mean to get rid of the rest of 227? I wouldn't want to do that. That was our solid waste bill, which sets up an extended producer responsibility program, for instance. So... Okay. I didn't... It was a question that had been asked. Is there another vehicle that makes it even cleaner and less? I'll look on our wall and see if there's something else suitable, if we're going to basically do it as a single shot bill and not believe it to something bigger. So that's what we'll... Between now and the next meeting, we will try and answer that. Yes. Yes. Thank you. When we adjourn, I'll go through the list of bills and see if there's some other waste-related bill on our wall that we could do a strike all on. If we want to be narrow. To be frank, I actually was hopeful that 227 was going to go shortly because it wasn't controversial. I don't have any opinion on that. One person's uncontroversial is someone else's controversial. So I'll be careful. And we'll look at both opportunities. But I'll be a little optimistic. And if Mr. O'Grady, if you can just draft it for 227 and then we'll... I'll talk with rules and leadership and we'll clear the flight path before we actually have any kind of vote. Okay. I've got to jump to another committee now. Thank you, Michael. All right. So that, I think, completes this topic. I don't know if Commissioner Walk or Mr. Chapman have anything else or Ms. Jamieson have anything else they want to share with us before we move on to another topic. I'll just add just to thank you to the committee for hearing us out and working through this process. I think the course that you've landed on is a good one and well cabin so that we can evaluate the situations as they come up. And hopefully they will not. But I also have to drop thank you very much for this time. Okay. Well, you're welcome. I would say it's not been the easiest path so far. But we're getting there. Okay. You've had it harder. Yeah. Yeah. This committee seems to run into controversy regularly. Okay. So I think that's it for Charlotte Wase for today. I did want to touch base with the committee about the other thing it was on our list. The other day was 267 and I just wanted to check in with committee members. So 267 people will recall was a renewable energy standard bill. We referred it down to the hall to finance. They worked on it, sent it back to us. We have it and just prior to adjournment, we were looking at amending it and bringing it to the floor. So it's been in limbo. I would say it is a bill with plenty of controversy in it. And therefore, I'm not sure that it's exactly the kind of thing that's right for this moment in the zoom and end of session world. But so I guess I'm really polling the committee to see if that bill is something that in a way you'd like to see us go to bat for in terms of trying to bring it up and move anything in it. Senator Rogers. So I do not support the bill, but I would support having the department look into what the ramifications of the bill would be because I assume somebody will be trying to move it forward again in the future. And from my study of the issue, it's going to be a huge increase to rate payers cost. And so if you know, I'm fine with doing nothing, but I certainly would not support it this year next year or any other year, unless the department is fully. Okay. Because I had the sense that the future of this bill at the moment was a bit tenuous. I did talk to Mr. McNamara last week. And even without formal legislation asking him to look into it, I think he is interested in trying to do some at least some research on the question because we all know it will come up again. Great. Can we hear from the lead sponsor on this? Do senators have an opportunity to come in and make his case? So he spoke with us that week just prior to all adjourning and going home, but we have not asked him in to talk about the bill since. I mean, if this is something that's important to him, I know I'm because I mean, I'm happy to continue this, but there are other priorities as well out there. So I'm happy to continue this discussion and see if we get somewhere. We worked on it, you know, long and hard and finance. So happy to keep it with you. Okay. Well, I'm with Senator Rogers. I'm going to let this on live. Where are you, Senator Aaron? I'm in the car. Okay. Hello. Do you guys hear me? No, we can't. Okay. Is there anything else? Senator Bray seems paused. We cannot hear you, Senator Bray. And now you have disappeared. I don't know if that's an indication that the committee is over. So I'm asking Senator Rogers, I want to speak to him by phone in the next 10 minutes. As soon as we adjourn, if you would, Senator Rogers, if you'd be available, that'd be terrific. Thank you. You're all on my number. Six, seven, three, nine, three. We're live on YouTube. Yeah. Is my number headed in the right direction? I think that one will work. Thanks. But if we're done this meeting, Mark, call me immediately because I got to get out the door fairly quick. I'm trying to come back. I don't know if there's anything else on the agenda. I'm here I am. Are we adjourned? Almost. You can't leave this committee long before you adjourn. I see that. Anyway, so thanks very much for everyone working through what has been protracted and thorny issue on the solid waste stuff. So we'll see what the final pathway is here, but I will go out as we're talking about and check things out with leadership and rules. And then we present with the caucus and that would be that. So thank you, everyone. Tomorrow and Friday, one more piece of housekeeping. As you know, there is a great interest in the House, which voted 105 to 37, I think it was, plus the Senate had a global warming type bill that had something like 15 sponsors on it. There's a lot of interest in Global Warrant Solutions Act or some version thereof. And so in order to get it started, I asked Luke to come, he'll be coming in tomorrow and Friday to do a, he has a two part presentation, which it runs four hours. So we're going to get a good dose of information. Plus, he said he has emailed us packets that should be arriving today so that we'll have hard copy in hand while he's doing his work. So if there's nothing else that anyone else wants to put on the table, I think we are done for today. Thank you. Thank you. One last thing for people are listening from the solid waste world. I encourage you to keep your eye on this piece as we move it forward. I'll say it one more time. We appreciate the work you've been doing and we just want to make changes that are well structured. So be well and see you all tomorrow.