 We're looking at draft 1.6 strike off amendment to S-54. And I think where I'd like to take you is to the section on the canvas registry. So if you look at page 39 in the highlighted language. So with respect to the call that the reason this language is in here is that as of January 1st, 2021, the medical registry was shipped over under the purview of the board from the Department of Public Safety. And you'd also have the commercial retail up and running shortly thereafter and then orders from the scale down version of the registry and the board would be adopting rules for the other programs. And one of the things in here was that in the bill is introduced the definition basically for the qualifying condition to get on the registry was a definition that the Senate had passed a few times previously in various medical canvas bills where it was broadening the definition for the qualifying condition to include basically anything that your health care provider determined was appropriate. And the medical society I believe has testified against that. Senator Sear does mean to go back to the existing language. So that's what I've done. So what we have is page 39 for the definition of qualified medical condition. So that term is different than what is currently used which is debilitating medical conditions. So we're changing the names to be qualified medical condition and the definition so what you see on line 7 through 17 on page 39 is the definition under current law. And that because we will have a medical marijuana bill for that time to be able to distribute. Yup. So next change is on page 40. And you see the bottom of the page, Subsection C and this has to do with information in the registry that would be exempt from public inspection. And that's language that you've already seen from Senate Gov Ops. Why don't you draft 2.1? 1.6. 1.6. No wonder. Do we have a draft 2.1? Well, I have one. I'll draft 2.1. I think it's copy. Huh? Is it 2.3? No, 1.6. 1.6. Since 8 is February 13th? No. You'll be right over. Yeah. Marijuana? Yeah. The bill is introduced. Something happens. It's gremlins coming in at night. No, I just took them on those days. I got draft 1.22? No. I think you're probably looking at the earlier versions of the bill before it was introduced. Peggy, do you just have an extra copy? No, I can print it. Here, would you like mine? No. Use my copy. Well, I don't have my copy. Everything else, if something happens. I know what you're doing. Go ahead. Go through it. You just print me a copy. Yeah. So just on this. How did we take it out to take it to something? So the language on the public records exemption with regard to the registry is essentially what they do now. So there's certain, you know, in terms of individuality and identifying information about patients and caregivers would be exempt so that information would not be publicly available. And you see at the top of page 41 there's so many words again that we have currently which is that in response to persons with critical property specific and created by law enforcement then that information would be able to be released to them. So it could be that neighbor calls he says while I see the canvas running in my where it's back to ours or something and they've got more planes than I think it could be able to have under the regular law and law enforcement that person doesn't have a copy if they're a medical registry or something. That's how it works finally. So the next page is page 45. Actually on 41 those highlighted stuff. Oh I'm sorry. Before you need that then on line 3 it says the board may verify that just curious is it why may let it be. That's how it's structured now on how it's stated. I think you can fire it out. I'm fine with may because it stresses that it's a phone the firing destination but then I would do may. I would do may too. It may well be that the person whose case it is would really maybe they want them to get the photo of it. Turn out a bona fide I mean I can say I've never in terms of what I haven't heard anything from the department that they've had the issue of it. So page 45 this is in the new chapter for dispensaries once they shift over and this is language with regard to dispensaries and information not being accessible relating to security, transportation, public safety, trade secrets and employees that are contained in an application. Tell me what section you're on and I'll try to follow the bills introduced. Well I'm going to give you mine. I've gone through this so many times by heart. Thank you. So we're on page 45 at the bottom of section B and again this is language that came over that I've already talked to you about but I just want to show it's in your amendment now this came over from GovOps and this would be the PRA exemption with regard to certain information with regard to the dispensaries and again kind of just modeling what they do currently with the front of public safety. Next I'm not going to let you see the places where I change it to from children to persons under the age of 21 but I don't think I need to talk about those. Next section changes bottom of page 49 and this is on criminal background checks for applicants for dispensary license and again this is language that we talked about earlier because in a few different places around when the board is adopting rules for determining whether an applicant should be granted a dispensary license and through the background check the board is going to be adopting a system and you know whether they go through and determine points for certain offenses like some states have done or whatever their process is for determining whether or not somebody's criminal history record should disqualify them for dispensary application and you see the language starting on the bottom of the page on the 1921 that's based on factors whether the applicant presently opposes the correct public safety or the power function with the regulated market that language also you see in the next section on page 50 it's starting on line 13 and that has to do with the dispensary identification part so if you work in a dispensary again just like now you have to have a card and you get a background check and you have a recognition card that they have Next changes are to the tax section so page 53 and section 7902 so you guys have already discussed this of a bit and both Sonic of Ops and in here about changing it was a one percent option and then I think you discussed about it being two in here and then Sonic of Ops said they'd like it to be to say like essentially up to two so it could be less than two so it shall not exceed two and then the language that struck in subdivision B one this is just relating back to the local government authority about what they can regulate and it just the way that it was originally draft it kind of made it sound as though they you know somebody wanted to make the argument despite all your saying that you can't do these things over here it just sounded like maybe they possibly could perfect their retail sale through something other than a vote and so this is just kind of a clarification language it doesn't change anything substantive I just think it was it was probably the popular can you just remind me so at this it should this pass then that municipality would be able to totally ban the shop by a vote of the yeah not to continue in the earlier sections this is just a cross-reference but this references the reference there is referencing some other things having to do with their inherent authority under title 24 around nuisance and things like that and by referencing it we don't want to give the impression that they could somehow completely prohibit it through using a nuisance ordinance which is what you guys have prohibited earlier it's kind of like if you if you want to ban it you have to do it through the process that you set for it all right so good job I wish I will find my copy well I have a new one the problem is quite frankly that we're all in a rush here we've got thousands of things going on and we don't have staffing we don't have the it just people expect out of this legislature things that cannot be delivered because of the constraints of the legislatures budgets it's unfortunate Peggy does her best to keep us track of us all but I decided to keep my own cannabis file and here's what's happened and that's part of the problem and we just do not have any people expecting more from us than we're able to deliver and particularly this year the unfortunate thin shell of Senator White and I were talking about it earlier and I'm sure the other members of the committee have all done whatever reason this year difficult year for the staff to try to the number of drafting requests and then we have house committees and line of staff for three, four days in a row so our committees can't get them this needs to change for this legislature won't be able to function and I understand house members they go for drafting requests that have first come for basis but if you have a bill like the youth justice bill if you're trying to work with a list of stakeholders before you introduce the bill I still haven't even signed it out yet because Brenner's been working with the stakeholders and they're trying to get to agreement on a number of issues and I've gone over it three or four times and there's one sticking point so none that gets held up because the Proofers are doing some bill that will never even see the light of day so that's my rant for the day thank you staff for doing what you do Peggy you know and then you have the staff members this place is dysfunctional right now in terms of trying to do legislation we're working from drafts we've never done that before yesterday we worked from the draft on bills where we have gotten a record number and it keeps well it's not only that but the system says first come first served and when you have something that is a must pass bill we're close to it for whatever reason because obviously it wasn't first it gets backed up because you're trying to get agreement before you introduce it so that's going on in every committee and we're going to have some problems this year that we haven't confronted in the past and when they come up we'll be surprised I will mention since you brought it up that so I haven't had any of these amendments prove just because there's not the capacity down there but what I'm going to do is I've already gotten almost all the amendment based on your last talk you've done I'll make any little tweaks here I'm ready to come back like as soon as like 30 minutes with you so you can talk about it vote on it but it won't be it won't be proved until later the next decision that has to be made is whether or not to include the a special exemption or whatever you want to call it for the medical dispensaries to be able to start up earlier than the others and you know I think we've already talked about it is there a motion to add that to the bill I'll make a motion to add that to the bill okay Senator Nick is that a motion to add the early start up to the medical dispensaries to the bill is there a discussion I realized that I was put in the position of potentially being the decided and I still go back and forth and back and forth and back and forth but where I think I've landed is that I don't have an issue with a monopoly I don't have an issue with an equal play bill because we know that there's probably nothing that we can do to make it truly an equal play well I appreciate the fact that the dispensaries were willing to take the risk when they did and have put in a lot of effort and a lot of infrastructure and capital into it I do think that there are issues around it they have an entirely different structure they're vertically integrated these are not vertically integrated the rules will be different I'm and I heard from some patients that they don't want to go to the same place that by their medicine that somebody would be going and I realize it would be different door or whatever so I believe I've come down on the side of not and I'm sorry that I'm because I really thought that it might be and if we're doing it just for the money I don't think that that's a reason to do it that's a good point but I it's a debatable issue knowing that it's in the House bill that they come back at us so I haven't changed my mind and the cultivators are much earlier than the cultivators for the retailers so that a dispensary could be applied to be a cultivator earlier it's also a decision that can be revisited next year yeah senator bedding you are not the great decider I'm not the great decider I didn't have to make a decision I was already planning on exercising my republican prerogative of being able to change my living actually I listened to the debate I was several of us the other day and I thought Dick had more credible points to his argument at that point so that's where I'm coming in now I can be associated with Bush but you are we're not going to add that so I would like to say that I read some place that I wanted that because it would be faster hardly the case I wanted it because it would be I think a smoother roll out and the money isn't the issue I wanted to be if I have this I wanted to be able to work well in communities I think the opportunity for as you said if it was for five to get it going and have it be smooth rather than kind of the potential chaos that might happen when the roll out occurs and it's not handled in a way that is respected I hope we'll learn from Massachusetts mistakes on the roll out it has been helpful for me to be able to read the Boston Loads articles every day and I try to share many of them with you and the fact that the entire city of Boston which is obviously larger in population the state of Vermont only has nine licenses makes you wonder what would happen if we granted 10 early where the competition might be but also Massachusetts has had a long roll out there the commission is still developing rules and things come up and then they have to do a roll with that you know it's the the other issue, one other issue that we kind of lost over was delivery by the way have we added delivery or have we asked the board to look at it with the other things that you put in to ask the board to look at I don't think the delivery Do you remember there was a discussion here about delivery because it's clear that those that are growing and giving are delivering and even some that might be selling are delivering and whether the board should consider that but you've got your list that's the one other issue that I thought we did really we had a list of things the board would consider remember we discussed that yes I have that I took off the cafe lounge stuff for the next person so the only things you haven't come back on are kind of like the year two roll out and and how to work with other agencies that's part of the year one roll out there's one other thing the medical delivers yeah they deliver so we don't want to interfere with that well they can still I don't think we had no I don't remember I thought you all decided in the bill's introduced it said no delivery or retail I'll leave it that way okay I thought can't deliver or can't well under this there would be no provision that would allow delivery then I can add something if you want the board to come back with a proposal or to address it I think that whether we do or don't it's going to pop up as an issue because the attorney general has tried to quash the gifting thing but delivery will fill gaps I think it might not be a bad idea I think we bogged down a little last time over whether it would be a recommendation because that seems to lean in the direction of doing it but if we don't have the board consider the issue of looking at other states yeah are there any other issues that we've missed before the cell re-race do you want to talk about the Avanaki issue here in the OP I've agreed with Senator White committee but maybe other members of the committee would not agree I think it wasn't my committee it was me okay we didn't even have that discussion okay I think that it's on page 30 of this and my recommendation is not to put to reference at all online too and to just put a period after Vermont and I believe that members of the Avanaki community would be covered under lines 10 and 11 and to single them out to give preference is I don't think makes sense I oppose that I agree and I think they're also covered under the minority ownership provision well that was something I saw as being a frightening frightening the week being something that would recognize particularly there's status as an unrecognized federal tribe but as recognized by Vermont government but I don't think to me that you know there's the you're correct they are would be seen as but oftentimes it seems like even when I was looking at the the racial bias bill that just passed that's an education committee there's references to various groups but it seems like Native Americans get left out of these groups that have been discriminated against or am I wrong about this I would say we have testimony from from an Avanaki chief who voiced similar concerns and we have assurances on the committee that the definition of ethnic group that's there includes in two ways but and that's true the proposal from the attorney general as well there was nothing there I talked about if that's I think during the racial bias discussion we should talk a little bit more about this because if I just feel like our discussion frequently center upon people of color or sexual orientation or disability and it seems like they get left out as people of color I just I'm sensitive to it because I remember having a couple of kids in my program who were having Avanaki and it was very difficult for them to they have a whole different system in terms of the federal foster care system and there are other rules for Native Americans anyhow I'm finally not having it in here but I think we should be conscious of that to be discussed I think we're going to have testimony from the same person that you probably heard from so I don't know if we talked about this or not but under the priorities and I think it's in my mind it's just for cultivators so I don't know how you put that in because there are no priorities for the different things but I would like to see priorities for cultivators given to small local growers and also and I don't know how to say this who have experience in horticulture science agriculture something trying to get at the people who are currently doing it that they should be given some priority and I don't know how we put that in there so the idea being that illegal growers are brought in somebody help me with what is small they shouldn't be having experience in cannabis cultivation because that's been illegal you know what it's been one of the issues when I was asked on DPR and other places what is small and I guess it's something that's in the folder I kind of responded something that's small enough to still be profitable if the person is able to provide a secure type of operation then that would be as small as they could do it but it has to be secure blah blah blah and I'm wondering if we've ever defined small well we have a section in here that gives special that they can establish special rules for people who are on my 500 square feet and I guess my concern is that there are a lot of people out there who aren't this isn't going to be their only endeavor they're going to their farmers out there who are it's currently and could or could be a supplemental income for them and they so that is their business plan wouldn't have them supporting themselves entirely by this but I think they should be given some preference to granting the permits for the cultivators but the problem is you still need to have a secure capability and they can they'll do special needs to be they have to go through certain regulations that they wouldn't have to go through for other products I remember having a conversation when this was maybe three or four years ago the first time we did this bill in economic development we had testimony from a couple of small you know black market growers and we talked to them about would they be willing to accept certain security things and those people were resistant at that time to the idea that they said they would continue to grow as they are now because they didn't want to go through the whole system so I don't know I also don't have to pay taxes I don't know how you cut into that well there is a section in here and I cannot find it ever when I'm looking for it that says that they should consider slightly different regulations for people under the rule section but my question I guess for you is because I think it's mixing a few different issues which is is it that you want so remember the board is going to be establishing the tiers for the cultivation determining and so they may say we're going to have an unlimited number of 500 under licenses where we're going to have larger amounts and so what Senator Sears says is well what is small I think I mentioned here that when I was looking at comparing with other states Vermont what you had in 241 as the largest grow operation that you would have allowed under 241 was the second smallest that mass is doing you know so it's all and you know whatever however you decide to do it and so the board is going to develop those tiers and determine how many permits are available under that if you want if you want illegal growers to come in well let's say there's like the illegal grower issue then there's like the small separate and apart if you want the board to say I want priority for small growers then I wouldn't do it in priorities I would say it separately and say when the board is issuing cultivator licenses it shall prioritize issuance of you know tiers smaller tiers or something along those lines I would go that direction then you had mentioned before about you wanted priorities that if it's a cultivator license for people to have experience but I think that's going to be something that they're developing the rules and doing in terms of like if you're doing it illegally now and you're going to you're going to get the VIP pass to the front I'm honestly I'm not clear about how to write that but if you'll do this put some language in there about this small that satisfies but I do want to recognize that I understand that it is a policy decision that you know a large private bill is in many different places intended to bring people from the illegal market into the regulated market and that's a goal of this in order to kind of minimize the illegal market as much as possible but so I get it but I'm from the drafting standpoint I'm a little stumped on what you said she'll call strip liability medical bond and build thank you Mr. Chairman and if you could give me a minute just to amend my testimony to add in your last point there it might help us in our the anti he would object to that so again thank you Mr. Chairman we believe this will associate the industry to her mom we appreciate the time we're providing for some additional testimony and at the committee's time so I'll try to be brief and talk mostly about the recommendations would be a few at this point clearly as we've testified in the past it should be no surprise we share the concerns of a raise about the impact on costs and availability of insurance on the certainty of operational costs and the other issues that have given a lot of concern about the legislation but with regard to making recommendations for the committee's consideration what I'm trying to do is look at how this legislation has evolved at different points including last year's version some of the recommendations that other witnesses have put forward and also with regard to trying to find some on the ground on monitoring provisions looking more closely at what some of the other states that have gone down the path we seem to be laying out that maybe address some of the concerns that we've had so I'll try to go through all of that at this point first of all and obviously it's a big ask but we would recommend the strict liability provisions from the bill separating that question you know but to be honest it's hard for us to come up with ways to try to massage that language that doesn't still we have that was the path this legislation took last year in terms of separating the questions for different areas of further consideration we would certainly recommend that this legislation follow a similar path as that beyond that we have made a recommendation in the past it might be better to look at maybe addressing some of the remedies or recourses in 6615 of title 10 where you have the state response to the releases of the damages or concerns that people seem to address in those sections of this bill could maybe be addressed in some way in that area so our second recommendation is to this one you've certainly heard before including in this go around so to go ahead and exclude permitted releases that are in compliance with statutory regulatory requirements from the viability provisions of the bill you know it's been raised that that's not always a defense of the context but that doesn't mean that it's not a reasonable defense or criteria in this context we think that that certainly speaks to the question of whether a company is acting negligently or irresponsibly and also there's sort of predictability and confidence that both companies and their insurers or other finance or others have if we were to do that that that would actually hurt efforts to hold somebody accountable who had created under current law created a toxic environment I'm thinking specifically the same domain accepted responsibility for polluting even though it's questionable that the permits were there when they did it this would exclude them from that because if they had the permits this would be dramatic change I would think and maybe I'm reading more into it and I wish Mike was here but I'm thinking that this would actually give more protection to the polluter that's currently available that's certainly a fair concern maybe I'm wrong I'm happy to be wrong I hope I have I have the disadvantage or advantage of also not being a lawyer I don't think what we would recommend is taking away three courses that currently exist except this legislation changes criteria or perhaps increases exposure to liability that that be focused on I would that would be one question that I would request that somebody who looks at this either Mike or Grady or somebody else to explain to make sure that if we were to accept this we wouldn't be going backwards I was going to ask Bill a question about that but in that definition you would leave intentional work on it but could degree do what you wanted to an unintentional violation of a permit that would be covered and you know if we yield on that maybe we would like to massage that for a little bit the core of the definition the third point how would that hurt that's my favorite of what I was just about to yeah the one that's your definition right so I'm concerned with that is that yes right and this seems unnecessarily and so broad you know showing by actually simply increasing the risk of development of the latency that gets back to the question of whether the coffee in your cup or the cream in your coffee the sugar in your coffee it's going to be encapsulated or captured by the scope of the legislation and our view is that if you look at the other definitions that are in there in terms of the list they're on there's the health determination of the Department of Health you'll get all those other categories that capture what a cup or a cup chemical would be just seems very comprehensive and sufficient in our view the alternative would be to incorporate within this provision all sorts of criteria about the scientific standards that provision was added after the bill I believe it was not in the original there have been varying versions that I have to have around that that's true but as far as it's so broad that it would bring in as it's current what is harmful we found that something was harmful I don't know who you'd sue for that I'm trying to figure it out because it's harmful maybe my mother didn't tell me we were sunscreen so next we're going to the amendment that we forgot on Tuesday I'll just follow that on page 8 so the first one addresses the first criteria and we would certainly move into torturous conduct because I think we didn't step forward from what the original language was we think it would be more clear and appropriate to be more specific about requiring negligence or reckless conduct if you look at the states that have court precedence establishing medical liability it appears that most of them have negligence as the standard and we get that out in a more appropriate way this precise formulation I just took from the testimony that was suggested which seems to be the reason for the formulation obviously there are others if you look at those court decisions sometimes just negligence but we would recommend that change the next one again that has come up is requiring exposure to exceed background levels and I would also suggest consideration of looking at actual state and federal health guidelines because these responsible authorities have looked at how much of an exposure is of concern and that would seem to be relevant to this topic again certainly background above background level exposure something that other states have looked at again pencil that and when I speak of Pennsylvania the source I was using was the decision on the motion to compel that I think was put into your record on Tuesday I'm not getting tense to read through it but it included a list of some of the criteria in Pennsylvania that seemed I think Pennsylvania gets referenced for how many and a lot of the language seem to be make sense for what we're trying to to offer here finally again this is against these two sort of the level of the level of harm and criteria rather than being too open-ended that's to require as approximate result of the exposure that the person has a significantly increased risk of contracting a serious life disease again that's from the Pennsylvania description the current language in here number three is simply just any increase in risk which is again seems too much of a de minimis threshold to really have a significant meaning and there's also the concern and controversy over whether there doesn't even have to be a serious life disease it seems like language like this in other from other states would have a more reasonable bar to meet would be more appropriate in that sense also similarly in terms of having criteria for the need of the monitoring again this is just combined from two of the provisions in the Pennsylvania descriptions which is that rather than simply having any affiliation of prescribed monitoring without any sort of standards associated with that she would instead say that prescribed monitoring is different than that normally recommended in the absence of the exposure and that the monitoring is reasonably necessary according to contemporary scientific principles again obviously something like that would be in two different ways I simply borrowed the working from that Pennsylvania overview and then the last point again this has come up and I apologize I haven't been here when the committee has discussed this and every time that there's a reason but there has been a question again is this really retroactive or isn't it and I know a number of folks concerned with the legislation have been interested in making sure that's not retroactive so as to write greater clarity going forward as opposed to uncertainty and risk going backwards and I know there's been a lot of discussion I would be sure to admit if it's the interest of the committee to have it not be retroactive just to be explicit about that in the legislation to avoid the argument about that I have a question about retroactivity that would need to be answered that is I'm fine if we wanted to exempt something that's already in a court system like the Sanctuary of files that's the thing that was already in court files but what about a product that was used 10 years ago that we now find has impacted the groundwater that would be we couldn't go after it because it happened 10 years ago it's like it's like looking at a statute of limitations and having a zero statute of limitations so I would I would be more concerned about things that are that we haven't discovered yet well I could see a say well it's already in the court system the courts are already dealing with the current law this could actually confuse I suppose but I don't know how I say well I have though we found out that another chemical company had exposed reminders to some serious health then we would be exempting them because we said it wasn't retroactive it would be only futures bills future congratulations I would be my concern there I understand where you're going yeah and I appreciate that I didn't have wasn't able to find time to dig it up I know there was some legislation some language discussed on the house side you know that's that's a good or bad I tried to address that question how do you address retroactivity you did not make it into the final version that went through the process but we tried to dig it up and see if there's time to see that any other questions we do have one question about background weapons yeah did that I mean at the background I didn't think of that I was not even in Wellington I have a constituent who's arguing you with me because it was well tested at zero and I'm sorry that you don't have toxic waste on your well. We don't know why it tested at zero but keep testing but you know there is no contamination so really you're not eligible for the oh it's system and the other things that were provided that was really kind of a humerus but it was odd because he wanted to be contaminated so so I wonder if that is already there. I know it popped up in and out of versions going out. I think I don't have any problem saying if you're and if you're not contaminated under the background levels that have been established by the state. I don't base in the draft that the draft you got Tuesday and also and also I do want to make it clear that you know exposure above background levels you can find that in other states. I don't know if there are other states that address state and federal health guidelines that's that's just our recommendation. It's not in the bill right now. No but the exposure is above yeah the background level is I think it's actually the other way the reason enough of the contamination in your right it says that the exposure increases the risk of developing the late disease. Right so if it was below the background level let's say there were a number of wells that were below 20 parts per trillion. That several wells below 20 parts per trillion those weren't considered to be in their major level and there was a retest of them because some of them that were below that level were actually near wells that tested high above so there's no you know shallow wells might test lower deeper wells may test lower it's hard to tell how the PFOAs went through the ground water but so right so your point is your because the background level was it was then you were exposed that exposure right increases your risk but if your exposure was over 20 then you are considered to be a risky population and do we I mean in that case do we know what the background level was before I mean like in what in our case with Vermont Yankee we know that there is a certain background level of radio activity in in the air and in the ground and in our bodies but so if your exposure is above that that level then it's considered exposure but if it's if it's at that level and it will be fact that just you know I think Yankee is a good example of because radio you know radio activity can come from multiple sources you know that exposure increased your your risk of developing the if you were bound to be above that background level but I'm I don't know I hear more comments but it does seem to me that if you're that there should be an exposure above a background level in order to I think that's a policy decision committee if they want any other questions those are those are our key recommendation thank you it's just one of the first of your top I could go along with that The final witness of the meeting is Ken Brunel always stumble on your last name Ken I'm sorry there was an attorney for Vermont law school and they had some comments about some of the recommendations for the recommendation Well first of all I'd like to share that everybody does have to do my last name which is why my wife did not decide to take my last name She did not want to be called Mrs. Rumlet for the rest of her life So I'll take a stab at addressing some of the comments that Mr. Griskell just and I think I want to start off with the background levels issue because that is anything fresh on everybody's mind the key issue in any claim for medical monitoring is what has happened to you as a result of exposure to the defendants chemicals so in order to prove that we need to prove that a defendant caused you to be exposed to a certain concentration of chemicals in whether or not monitoring is required in that scenario doesn't depend on existing background levels the question is whether that contribution is sufficient to warrant the need for medical does that make sense no no oh it doesn't to me because if you already have a I mean I'm not as familiar with the PFOA issue but I am very familiar with the Vermont Yankees if I have that level of radioactivity and in the that's the background level how can I claim that exposure to Vermont Yankee has let's say the threshold for the need for monitoring is 20 and there's a background level of five if you're in monitoring is only again required or recommended if you have an exposure of 20 well I don't understand that because it doesn't say that is that what it says here but that we can establish the level for let me track an expert will come in and testify that above a threshold exposure of say 20 whatever units those are monitoring is recommended does that make sense yeah and let's say there's a background level of five assuming we all agree on what the term background level is which is another story in so therefore in order to get monitoring under a medical monitoring claim you would need to prove that the defendant is responsible for an exposure of I get that and that is so it would always be above whatever would be considered though but I think that goes back to the second criteria there's a probable length of exposure to the toxic substance and the late disease and so if the exposure is based on the background level if you have what the scenario now there's also the situation where there is some background exposure say five again in the defendant is responsible for 15 and the plane to prove that well the question then is is their contribution to the plaintiff exposure that puts an active level something that they should be responsible for you know I think the answer to that yes if you've sent somebody over the edge then liability to attempt now the other issue with background levels is there will be a large debate over what background means and how to calculate it with something like PFOA which is not a natural chemical what should the background be zero I think that's pretty plain to see there's other types of substances for which like radiation there might be some background levels that aren't a trivial to you anthropogenic sources but why get into that debate the question is whether your exposure that's a result of the defendant's conduct is enough to put you in a situation where monitoring is recommended and what about the issue of some of suggested are we done with the background I am some of suggested that there be a level of this of the toxic discharge and be by gallons or whatever that is is that problematic in determining how many you know I only still 50 gallons which is a thousand gallons well I would recommend and I think you were speaking to the scope of defendants who might fall under the medical monitor or the strict libelization we have now exposure right you were to expose the population to it in my view the issue is whether whatever was released is enough to cause harm in or or necessary part or requires monitoring as a result of exposure in order I understand there's a concern over not bringing in mom and pop business into the realm of strict liability or medical monitoring I think that's a fair concern I would not I would not add a requirement based on the amount of any particular chemical rather look at the capability of the business or industry to address the risks and I think a good indicator of that is the number of employees either cat a particular facility or corporate life that's in the build-up or in the draft I might have one more thing I think if you have this issue of having to determine how much of a particular chemical is on site there would be debates or active ingredients in the next year and it overly complicates the situation that really isn't about regulation right this isn't requiring somebody to do or refrain from doing anything file reports hire somebody to look at you know complying with OSHA or other the issues just who should who has the level of sophistication to understand the seriousness of using toxic chemicals and releasing them to the environment I believe that's the concern there was testimony about excluding from strict liability releases that are permitted under a current permanent or future permit in I think we have to go back and look at why we're here in the first place we're here in the first place because the law and the regulations were not sufficiently protective or remonters if there were releases of a chemical that was not regulated still isn't regulated nationally certainly and as a result of that people are in a bad situation so to the extent that there's a desire to exclude a car about permitted releases that ignores the entire problem and I think eliminates the safety net which is why this legislation is being proposed in the first place the other thing I've mentioned is that I want to dwell on that for a minute because I think that there's been a lot of misunderstanding about the goal of the bill. It is because the laws is not adequately currently protected by the industry's concern they realize the insurance industry's concern I realize nobody wants to be held responsible for something that happened and the industry would rather have the taxpayer or the victim pay by that you found no other system in this nation that holds the victim accountable for the damages done by the perpetrator. We deal with criminal law all the time. I mean it would be absurd to put the victim in jail rather than the perpetrator of an aggravated sexual assault. That's my grant for that one. You had your rent for the day before. No, it's the second rent of that. It started out as a bad day all around. But I thank you for raising that point. I really think that's something that's been missing at least in the conversation. Why would we do this in the first place? That's a nice segue into what I wanted to say next which is that it seems odd to me to request an exemption for permitted releases under strict liability if you truly believe those permitted levels were protected. And safe. I think it comes with an understanding that they're not. Or that there's certainly a significant risk that those standards aren't protected. So I find that a little conflicting in my personal view. So I'm just not sure. So you're saying the standards set by the state, for example, are not safe? I'm saying that there's a possibility, certainly, that they're not safe. And if there was 100% confidence that those levels would be protected for now and forever, in the setting of those standards there was only concern over risk to human health and the environment. And on that basis, those standards were set, which is not the case all the time. Certainly not under, you know, statutes that require a look at the economic impact of regulations. Then it would be more palatable in my view to say we should carve these permitted releases out, but we know that's not the case. We know that there is no, I think, perfectly protected standard. No, 100%. And maybe less than that. We've seen, certainly, in the case of PFOA, that industry had knowledge of the impacts of the chemical on human health, and that was kept from the public, kept from regulators. And as a result, for many, many years, and still today, it's not a regulated chemical at the national level. And I think Vermont is now working towards regulations, but, you know, this is already four or five years after discovery of PFOA issues. So in another setting last night, I heard from our, the chair of our Natural Resources, and he, I don't remember the exact number, but there are something like 5,000 PFAs or PFs, whatever they're called. And it went from five that had some definition. I believe he said we're now up to about 60. That's 60 out of 5,000, or whatever that number is, is not. So you're right. We're way, way, way behind. We are way behind, and that the standard for a class of chemicals for regulation is absolute proof of harm, we're not going to know. And, you know, ultimately, it means that Vermonters are getting things. Right. And everybody else in town. And everybody else in town. So moving right along. There was concern over the language in the bill about the standard for medical monitoring with respect to an increased risk of harm. The concern was that it's overly broad, and there should be additional qualifiers on the issue. And I would say one, when you incorporate language, which is in some other states. That's on page 7.50 and 16 of the bill. I think this is one of those issues though. We could argue all day about that. Whenever you add qualifier like significant, what you're doing is inviting litigation over what that term means. And I think the real question is whether when taken as a whole, you look at all of the elements that a plaintiff would need to prove in order to get monitoring. And the difficulty in proving those, that there's an understanding that we're not talking about situations where you drink a cup of coffee and you see the coffee coming. That's kind of an absurd read of how this would work. Because there's other provisions about who can be held liable. There's provisions that require a release from a certain type of facility. There's provisions that say that the exposure, that testing is reasonably necessary for the exposure and the definition of that. So I would caution the use of any of these qualifying words that are just going to be by litigation. When taken as a whole, the statute would address those concerns. And on top of that, and we've spoken about this before and I know there's been testimony about it, these are not easy claims. It requires a tremendous amount of resource. They're also very much population based claims. This isn't someone going to see a doctor. This is a whole community that's been exposed. That's traditionally where medical monitoring claims have been brought. So again, I would just caution against those kinds of, I like to call them measly workers, entering into the statute. There was testimony about defining tortuous conduct more specifically. I'm not sure exactly where the issue is. I know there's probably a desire to limit what kind of conduct could trigger medical monitoring. I would say at a minimum you would want to include, if it's further to find negligence, fairly reckless conduct with the one that you could include, but also the common law torts of trespass and nuisance. Those are often included in these kinds of claims where there's been a release that has a substance into the environment. And I really think that at least my memory is that the issues over whether strict liability would apply here. And that's of course a decision that his body can make. There was testimony that the medical monitoring language should require testing that is different than normally recommended in an accorded to contemporary scientific principles. I go back to what is it that we are dealing with here. Very similar to the background level of exposure issue that we talked about earlier. Different than normally recommended? Well the question is whether the defendants cause the exposure and as a result this person is required to have some kind of testing. In order to find that, or I'm sorry, detect that lane disease as early as possible. And that's it. Why look at whether in the absence of exposure what they would be required to look at the question is did this conduct necessitate testing? And if so, should a person, should the defendant be viable for it? Otherwise we're going to get into issues of well, what's your medical history? What are you normally tested for? What is anybody normally tested for? And that actually would open people up to having their irrelevant medical records become part of the case and prolonging the litigation substantially. So there's a risk there. And then finally the issue of retroactivity. My understanding of the month law is that a statute is not retroactive unless it expressly says so. So the language has to be explicit and that's just a decision again. What about a, even Michael or yourself? Can we distinguish between those things we don't know? I'm going to sound like no once in a while. No, not no. No, not no. We know there has been pollution but we haven't identified it yet so we don't know what we don't know. And if we don't allow some recourse for prior bad acts, I just, you know, again, I'm certainly fine with saying cases already been disposed of or the cases in court right now and it's not going to be affected by this new law. That would be really retroactive if you're kind of really upset a case that's already been decided. But I'm just worried about what we don't know. If you asked me five years ago, was there contamination in my neighbor's wells? I would have said no, they'd probably get a better water than I'd got from the town. And it turns out, you know, no one knew and it just, you know, look how much has happened. We had already decided that that would not be something that could be looked at. I'm really worried about that. So I don't know if there's a way to say, I don't know how to write it. So, Mr. Rommel, correct that under state statute 1BSA 213 says the laws operate prospectively, unless it's expressly provided that it applies retroactively. And you do retroactive laws that really have not been challenged by our constitution. Look at that building over there. Somebody designed that, an architect designed that 50 or 100 years ago, right? And we did do statute of limitations. Right, so this is what under 1BSA 214, the law does not affect any right privilege obligation or liability acquired accrue or incurred acquired to the extent of the amount of other repeals. So part of what 1BSA 215 has is when does the liability accrue or something like the PFOA releases when the contamination is discovered. And there are standards for that as to when it triggers the statute of limitations that you were just discussing. So I think you have some opportunity if you want to write language. I don't want to leave any futures contamination. That was a product that we thought were just wonderful. I remember when they banned it, my father going to the store and stalking up before they did it aloud. I was a little worried about it, but I was pretty young then and I didn't dare tell my father not to do it. But he thought it was a wonder thing to get rid of it. It was done. It was done. Anyway, I think of things like that when it was first applied it was seen as a wonderful thing. And I'm sure today we are using chemicals and we are using I mean who knows what the impact of cellular phones is that we're all using. My constituents can tell you. Yeah, well, I've got some constituents who have some real beliefs about the ways but I won't go there. But who knows what might be discovered later. So I think it's important that there be some form of that in the bill. Yeah, because if we had done this five years ago would it have completely exonerated? I mean it wouldn't have, yeah. So we need, I think, Michael. I don't think we should make things worse than they are today. Good night overall. I can try to work on that. So just to look at that, I hate to keep telling you about Senko Bain but for the people who haven't filed how about if the class action suit was withdrawn and started again? Well, are you saying would that somehow that they'd be outside the statute of limitations? Is that your concern? No, that they could do it again based on just thinking well, nobody's questioning what they're doing now. Well there's already litigation ongoing right now. Right. And there's another provision in law that says the acts or repeals that you adopt do not affect the ongoing litigation. So the law at the time that litigation was initiated will be the law. But there you can do some language around like when it was discovered or when it would, whatever. Yeah, I think just any statute of limitations should be after the discovery. Interesting. Are there any other questions for the professor and lawyer? This is, you know, both of you have been extremely helpful in identifying some of the issues. I don't know if they'll be satisfactory whatever the committee comes up with. But hopefully this morning we'll get further along.