Week 10 : March 19th to March 22nd

Ups and Downs of Lead Testing

Last week was a rough one.

I like to think of myself as fairly placid. Maybe that's the wrong word, but it shouldn't be easy to get me worked up about something. I like to take the long view, and wait to see if things are really so bad as they seem. Generally I find that the issues that wind people up boiled down to miscommunication or misinformation My approach is always to find the facts and talk to the people involved; find out what the real problem is. But last week I blew it. Sorta.

It all revolved around lead testing in the public schools of Vermont. The issue first reared its ugly head a few weeks prior when there was a line in the proposed Capital Bill for money for remediation of high lead levels the public schools. Not that anyone had actually found any yet but it was pretty much assumed that it would be. The Governor may also have mentioned lead testing in his budget address in January.

In committee discussion I said that I did not like it. The topic faded and was not brought up again.


If you're interested in how bills change and the details of it all, this post might be interesting. Otherwise, check back next week.

Chaos of Budget Adjustment and Lead

The House Passes Budget Adjustment - January 31st

Early in the session we're supposed to pass a bill that adjusts the budget. It's called the BAA for Budget Adjustment Act. Vermont's fiscal year (FY) run from July 1st to the end of June. Last June we passed a budget that funded FY18 which runs from July 1st of 2018 to June 30th of 2019. But things don't always work out as planned. We might spend more or less than was budgeted or there might be more or less revenue than planned. So one of the first things we do in January is adjust the budget. It's important to get that done quickly because there are often programs waiting for that adjustment. This year's BAA started as H.97.

On January 31st the House passed a revised H.97 with a vote of 137 to 0. It contained the following reference to lead testing in the public school

"To the Department of Health: $570,000 to establish a program to test for lead content in schools’ drinking water. "

That's all. I didn't notice it at the time. Looking back, I kinda like it. At any rate H.97 was off to the Senate.

The Senate Concurs with Amendments - February 13th

The Senate passed H.97 in Concurrence with proposal of amendment . They had made some changes and were sending it back to House. One of the changes had to do with lead in he public schools. It was as follows:

"(C) $1,265,000 to fund the initial testing and retesting costs.

(D) $860,000 to fund the estimated 50 percent State share of tap remediation costs."

So the Senate was adding that money would be allocated for remediation if lead was found. Tap remediation means replacing drinking water fountain taps and fixtures, not tearing out plumbing. This might also mean adding a filter of some sort.

Another lead bill (S.40) comes alive

Meanwhile the Senate also passed S.40 which sets up a whole testing, record keeping, remediation and enforcement program. The idea was to get things started with the BAA and follow up with the real program. That bill passed out of the Senate and on February 19th was shunted off to the House Education Committee.

Budget Adjustment back in the House

The BAA, now back in the House, was sent to the Appropriations committee. They had to decide whether or not to agree with the Senate's changes. I should add that at this point I was not paying much attention to the whole issue, but because it had come up with regard to the Capital Bill I did have an opinion. I saw/see this is a potentially very emotional issue that could cost the state a good deal of money. In fact I wish the issue had never come up. If people are worried about lead in the water, they should talk to the school board and have it tested. If there's a problem, they should fix it. I did not see a real call for making this a state issue. But I can/could also see that some might see this as a public health concern that should be addressed by the state. In any event I was/am very leery of committing money to the remediation, before the testing is done. Without the test results we have no idea how great the cost of remediation will be.

When it became obvious that the BAA was being held up by lead testing, people began talking about it and I began listening and researching. It's messy. There are all kinds of twists and turns about how much lead is bad, at what level it is worth fixing, how much is regulated by the EPA, the proper testing procedure and the proper remediation techniques.

Suspicious Postponements

The BAA was scheduled to come out of Appropriations and to the House floor for a vote on February 19th, but the chair of Appropriations requested a postponement for two days. Then on the 21st, another postponement until the 26th. Things we not progressing as planned.

The House Replies

On the 27th the BAA finally came again to the floor of the House. This time as the Senate Proposal of Amendment concurred in with further amendment thereto. Which means we're sending it back to the Senate with some changes. This time it contained the following:

"(C) $1,265,000 to fund the initial testing and retesting costs.

(D) $860,000 to fund the estimated 50 percent State share of tap remediation costs. "

I confess that, at the time, I was unaware of all these details. The changes were approved by all (or most, I don't know which) members of the Appropriations committee so I figured it was probably good. I voted to send the bill back to the Senate. But you can see that the House expanded the number of schools to be tested and still pays for a potion of remediation.

In The Senate - March 14th

Now we get into March. From the end of February to mid March the BAA sat in the Senate Appropriations committee. There were rumors of behind-the-scenes battles between Senate and House leadership over the issue.

On March 14th the Senate voted on the "House proposal of amendment concurred in with further proposal of amendment ." Which means their sending it back again with changes. Here's what changed in lead testing.

"(D) $860,000 to fund the estimated 50 percent State share of tap remediation costs. This State share funding commitment is limited to remediation of tap fixtures only. The funding will provide 50 percent of up to $300 for each tap fixture replacement excluding labor at schools, and 50 percent of up to $600 for each tap fixture replacement including labor at licensed childcare providers. " (My bold for emphasis.)

The Senate is being more specific about what it will fund and more importantly they are limiting it to ONLY taps. That seems to me to be putting a cap on the amount the State might have to come up with.

They passed these amendments and sent the bill back to the House.

No more back and forth

Mason's rules for parliamentary procedure in legislatures says that this back and forth can't go on for ever. This bill had started in the House, went to the Senate, then back to the House, then back to the Senate, and had now come back again to the House. Only three such bounces are allowed and this was the third. The only options open to the House was to agree with the Senate changes or form a conference committee to resolve the differences.

In The House - March 20th

The BAA was then supposed to come for a vote in the House on March 20th, but it was delayed another twp days.

A new bill appears - H.532

Also on Wednesday, March 20th a new bill appeared on the House floor. This contained the most important time-sensitive parts of the BAA. The hope was to pass this mini-BAA and get the important stuff done. The lead battle would continue elsewhere. But though the bill was presented, and an amendment suggested that contained the following:

"(D) $860,000 to fund the estimated 50 percent of tap remediation costs.

(2) To the Department of Environmental Conservation: $125,000 to fund the limited service remediation position established in S.40 of 2019. "

That's when I took notice. Before we voted on the amendment an hour recess was called and when we returned, the amendment was withdrawn. Something was going on.

The March 21 amendment to H.532

I read over the proposed amendment again before going for a long walk on that evening. I didn't like it. We had lost the "only" that had been in the Senate version.

As I walked I remembered an occasion from last session where a Representative had "moved to have the question divided." That means breaking the bill or amendment into pieces and voting on each piece or any combination of pieces. The only restriction is that the pieces have to be independent of each other. So I could move to have the proposed amendment to H.532 divided such that we would vote on the lead portion separately. The more I thought about it, the more I liked it. I spoke with a couple of other legislators I ran into and they were encouraging.

When I got back to the hotel I texted a couple of those in leadership and told them what I was contemplating. They said we should talk in the morning. I knew that this would really mess up all those negotiations between the House and Senate but I really didn't like the open-ended nature of the states commitment to remediation. I may have been a little confused as to exactly what amendment containing what was still alive.

The pace of change

The next morning (Thursday) I talked to the majority leader, an assistant majority leader, my committee chair, and the speaker. I found out right away that things had changed. A new amendment would be submitted. It would contain most, if not all, of the original BAA including the lead portion I did not like. If I wanted it changed I would have to propose amending the amendment. I agonized for an hour or so, took another short walk and decided to have an amendment drawn up in case I want to submit it when we would consider it all in the afternoon. An obliging lawyer in Legislative Council quickly did so and I had what is pictured at the top of the page. By the time we were meeting on the floor I had pretty much decided not to submit my amendment. Instead I would see what the new amendment contained. A rather frustrating day was coming to an end.

Thursday night I checked the House Calendar for Friday saw the following:

"(D) $860,000 to fund the estimated 50 percent State share of tap remediation costs. This State share funding commitment is limited to remediation of tap fixtures only. The funding will provide 50 percent of up to $300 for each tap fixture replacement excluding labor at schools, and 50 percent of up to $600 for each tap fixture replacement including labor at licensed childcare providers. "

This looked good. Keep in mind that I had not seen the language quoted above that is identical to this. That was in there before I started really looking at details.But it contained the "only" that I liked.

Friday - All Comes Clear

Friday morning I was feeling good. I told those that I had spoken with the previous day that I was happy with the change. They thanked me. Everything was fine when we assembled on the floor and took up H.532. The new amendment was presented and I double-checked the House Calendar on my desk. To my horror I read the following:

"(C) $2,125,000 to fund the initial testing and retesting costs and to apply to tap remediation costs. "

That was the language I did not like. It had changed since the evening before. This did not make sense. I checked again, and again. And worked myself in a fine tizzy. I then had a long and heated discussion with the chair of the Education committee. I was angered that the amendment had changed and I hadn't had a chance to look at it. It seemed that from 7:00 the previous evening when I checked the Calendar online it had contained that "only", and now it did not.

Back in my seat on the floor I cooled off a little and wondered if it was legal to change the calendar like that. During a break in the action I asked the House clerk about it and he referred me to one of his assistants who told me she's the only one that changes the calendar and she had done nothing since the end of the day before. Had I dreamed it?

Somewhere along the line, perhaps when I was going over all this with my committee chair I realized that the calendar contained both H.97 and H.532 and I had read the wrong page. I was all worked up over a misreading of the calendar. I tried to sorta apologize to the chair of Education and straightened things out with the clerk and basically crawled back into my hole, thankful that I had made a fool of myself to only three or four people instead of the whole House.

Most people were not following all this. But it's a valuable lesson to proceed with care.

Where we are now

After all this, the problem still exists. H.532 is off to the Senate with language I do not like. We'll see what they do with it. I have learned the process for submitting an amendment and I have expressed my concern about the language in the bill. Maybe it all worked out.

Coming Up

There are number of big issues coming closer to real consideration: paid family leave, minimum wage and a waiting period for gun purchases. Next week the budget should come out of committee and right after that the Capital Bill we've been working on. Things might settle in a week or two.