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Industry Braces for PFAS Lawsuits That Could 'Dwarf' Those of Asbestos, Tobacco
The warning of litigation to plastics makers comes as EPA is accused of failing to adequately test for "forever chemicals" in pesticides.
May 29, 2024
A newly reported warning to the plastics industry and a complaint filed by an environmental nonprofit this week highlighted how companies and the U.S. government have endangered the public with "forever chemical" contamination.
Per- and polyfluoroalkyl substances (PFAS) are commonly called forever chemicals because they remain in the human body and environment for long periods. They have been used in products such as firefighting foam, food packaging, stain-resistant fabrics, and pesticides, and linked to various health problems including cancers and issues with reproduction.
The New York Timesreported Tuesday that attorney Brian Gross recently told plastics executives that looming corporate liability litigation related to PFAS—some of which has already begun—could "dwarf anything related to asbestos," and lead to "astronomical" costs.
As the newspaper detailed:
"Do what you can, while you can, before you get sued," Mr. Gross said at the February session, according to a recording of the event made by a participant and examined by The New York Times. "Review any marketing materials or other communications that you've had with your customers, with your suppliers, see whether there's anything in those documents that's problematic to your defense," he said. "Weed out people and find the right witness to represent your company."
A spokesman for Mr. Gross' employer, MG+M The Law Firm, which defends companies in high-stakes litigation, didn't respond to questions about Mr. Gross' remarks and said he was unavailable to discuss them.
While Gross declined to comment, Emily M. Lamond, who focuses on environmental law at the firm Cole Schotz, told the Times that "to say that the floodgates are opening is an understatement."
"Take tobacco, asbestos, MTBE, combine them, and I think we're still going to see more PFAS-related litigation," Lamond said, referring to methyl tert-butyl ether. The newspaper noted that "together, the trio led to claims totaling hundreds of billions of dollars."
Back in 2005, the U.S. Environmental Protection Agency announced that DuPont would "pay $10.25 million—the largest civil administrative penalty EPA has ever obtained under any federal environmental statute—to settle violations alleged by EPA" related to PFAS and commit to $6.25 million for supplemental environmental projects.
The EPA has also taken more recent actions under President Joe Biden's "PFAS Strategic Roadmap," including designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Superfund law and setting the country's first-ever drinking water standards for those and other forever chemicals.
The Biden administration's steps, as the Times pointed out, are expected to fuel future litigation. Green groups have called the EPA's recent moves progress but not nearly enough—and as Capital Breported earlier this month, there are concerns that PFAS cleanup could disproportionately burden communities home to the working class and people of color.
On top of calls to go further with regulation and cleanup efforts, the EPA is facing pressure to retract what Public Employees for Environmental Responsibility (PEER) called "false statements" in a 2023 agency research memo and press release. The group filed a formal complaint with the EPA on Tuesday demanding a correction.
"This memo is some of the worst science I have seen come out of the agency," said PEER science policy director Kyla Bennett, a scientist and former EPA attorney, in a statement. "The fact that EPA claimed it could not find any PFAS in samples deliberately spiked is incredibly troubling."
"Scientists around the world are finding PFAS in pesticides from active and inert ingredients, contamination from fluorinated containers, and unknown sources," she continued. "EPA's claim that it 'did not find any PFAS' in these pesticides is not only untrue but lulls the public into a false sense of security that these products are PFAS-free."
Asked about PEER's submission by journalist Carey Gillam, the agency—which has 90 days to respond—said that "because these issues relate to a pending formal complaint process, EPA has no further information to provide."
Gillam reported that "joining in the allegations is environmental toxicologist Steven Lasee, who authored the 2022 study that the EPA challenged. Lasee is a consultant for state and federal government agencies on PFAS contamination projects and participated as a research fellow for the EPA's Office of Research and Development from February 2021 to February 2023."
As Gillam detailed at New Lede and The Guardian:
Amid the uproar over his paper and the subsequent EPA testing, Lasee sought to reproduce his initial results but was unable to do so. That created enough doubt about his own methodology that he sought to retract his paper.
Now, after seeing the EPA's internal testing data showing the agency did find PFOS and other types of PFAS in pesticides but failed to disclose those results, he has a new level of doubt—over the credibility of the agency.
"When you cherrypick data, you can make it say whatever you want it to say," Lasee said.
PEER's Bennett similarly said that "you don't get to just ignore the stuff that doesn't support your hypothesis. That is not science. That is corruption. I can only think that they were getting pressure from pesticide companies."
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Right-Wing Court's PFAS Ruling Will Impede Regulation of Harmful Chemicals, Advocates Say
Public health groups are "fully committed to taking all steps available to assure that the Inhance fluorination no longer produces dangerous PFAS which put workers, consumers, and communities at risk."
Mar 31, 2024
As public health experts raise alarm over the prevalence of highly toxic "forever chemicals," as per- and polyfluoroalkyl substances or PFAS are commonly known, one nonprofit investigative journalism outlet warned Saturday that a recent ruling could further tie up the regulatory process for the chemicals and other harmful substances.
"This ruling is likely to impede already excruciatingly slow efforts to regulate the presence of health harming chemicals in products people use in every part of their lives," said Watershed Investigations of a decision handed down earlier this month by the right-wing Fifth Circuit Court of Appeals in New Orleans.
The case is one of several involving Inhance Technologies, a Houston-based company that manufactures an estimated 200 million plastic containers each year using the fluorination process, which creates perfluorooctanoic acid (PFOA), a toxic PFAS compound.
In 2020, the Environmental Protection Agency (EPA) began requiring companies to submit notices regarding "significant new uses" of PFAS under Section 5 of the Toxic Substances Control Act (TSCA), as officials identified the chemicals as an "urgent public health and environmental issue" due to their links to cancer, liver and kidney disease, reproductive harms, and other serious health problems.
The agency found that PFAS were leaching into pesticides held in containers produced by Inhance.
In December, the agency prohibited Inhance from using the fluorination process because it had identified PFAS as an "unavoidable aspect" of its operations. Inhance sued the EPA soon after.
Inhance said that ending its fluorination practices would ultimately force the company to shut down and fought the EPA's order, arguing that it had created its plastic containers in the same way for decades, and therefore was not subject to the TSCA provision regarding "significant new use."
The EPA argued it only became aware of Inhance's process in 2020, but the conservative court disagreed that it could regulate the company under the "new use" rule—even as the judges acknowledged the company's products are harmful.
"The court did not dispute EPA's underlying decision that this is a danger to human health, what they did was say it's not a new use, which I think is wrong... but this case isn't over by any stretch," Kyla Bennett, a former EPA official who is now director of science policy for Public Employees for Environmental Responsibility (PEER), told The Guardian Saturday.
The judges said the EPA would have to regulate Inhance's containers under Section 6 of the TSCA, which it said requires the EPA to take into account the economic impact any regulations would have on Inhance.
PEER noted that Section 6 also states that health risks should be considered.
"The court erroneously limits EPA's authority to issue significant new use rules (SNURs) under the TSCA, seriously weakening this important tool for managing chemical risks to health and the environment which has been a mainstay of the TSCA program since the law's enactment in 1976," the group said.
Another case is playing out in the U.S. District Court for the Eastern District of Pennsylvania, where the EPA sued Inhance in 2022 for violating the TSCA. The Center for Environmental Health and PEER also took legal action against Inhance for the same reason, and against the EPA last month for withholding test data regarding PFAS in plastic containers.
"There are several paths forward," said PEER, "and our groups are fully committed to taking all steps available to assure that the Inhance fluorination no longer produces dangerous PFAS which put workers, consumers, and communities at risk."
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White House Censorship in the Name of Scientific Integrity
There is good reason to fear that a new Biden administration policy will create a broad chilling effect on scientific work involving hot button topics, such as birth control, climate change, and fetal tissue research. We must do better.
Sep 27, 2023
Laurance J. Peter, author of the “Peter Principle” that theorized in any hierarchy every employee tends to rise to his or her level of incompetence, once remarked that “Bureaucracy defends the status quo long past the time when the quo has lost its status.” This ingrained institutional resistance to change often induces bureaucracies to seek to suppress facts that challenge underlying assumptions of the current political agenda.
So, it was distressing to see the Biden White House issue a “Model Scientific Integrity Policy” earlier this year containing a provision that would forbid any federal from scientist “making or publishing” any statements “that could be construed as being judgments of, or recommendations on,” any federal policy without permission. It was doubly ironic that this new prohibition is contained in the section that purports to promote transparency and the “free flow of scientific information.”
This provision was based upon a similar bar contained within the U.S. Department of Agriculture’s scientific integrity policy adopted in 2014. USDA’s is the only federal scientific integrity policy with such a prohibition.
USDA has used this provision mainly to assuage concerns expressed by agrochemical companies and other “stakeholders.” In this regard, this provision has been invoked to order a staff entomologist to remove his name from a peer-reviewed journal article on how monoculture farming reduces diversity in insect populations, thus limiting beneficial pollinators. That same provision was also cited as the basis for barring a scientist from speaking at a conference about the effects on pollinators from genetically modified crops and the insecticides used to treat them. That scientist later resigned in frustration after concluding that groundbreaking research would be impossible to pursue inside USDA.
Unfortunately, the early indications are that with White House support, other agencies will adopt this gag order in their scientific integrity policies. This summer, the Department of Health & Human Services proposed to add this prohibition in its policy. It is now in its final stage of approval, meaning that it may soon apply across the entire $1.7 trillion HHS, its 12 divisions, and nine separate public health agencies, including the Centers for Disease Control & Prevention (CDC), National Institutes of Health, and Food & Drug Administration. Altogether, these agencies have roughly 78,000 employees, most of whom perform scientific or technical work that would be covered by the new policy.
There is good reason to fear that this new policy will create a broad chilling effect on scientific work involving hot button topics, such as birth control, climate change, and fetal tissue research. For example, a far more limited Congressional ban on the use of research funds “to advocate or promote gun control” caused the CDC to cease all gun violence research for more than 20 years until that legislative language, called the Dickey Amendment, was finally narrowed in 2019. Applying a broad prohibition on anything that “could be construed as” a comment or recommendation on any federal policy in all research at HHS would be tantamount to putting the Dickey Amendment on steroids.
It is especially galling that a ban on discussing the implications of research is part of a scientific integrity policy.
The further irony is that the Biden directive driving the revision of all federal scientific integrity policies was motivated by the censorship and suppression of science that occurred during the Trump years, during which the current scientific integrity policies inaugurated under President Obama proved useless. It does not take much imagination to envision how this Biden-sponsored language could be weaponized during a DeSantis or second Trump presidency.
Rather than serving any explicit political agenda from the White House or HHS Secretary Xavier Becerra, this provision appears to be the product of mid-level bureaucrats seeking to maintain some control of the clearance process for research publications. Under the guise of scientific integrity, the bureaucratic need to control information appears to have prevailed in the construction of a new generation of federal policies.
It is especially galling that a ban on discussing the implications of research is part of a scientific integrity policy. Scientific research with policy implications is often most at risk of suppression or political manipulation – and thus in greater need of protection rather than condemnation.
Nonetheless, this prohibition on statements that could be perceived as a comment or recommendation on any federal policy may spread across a score of agencies that are now in the process of revising their scientific integrity policies. It is easily foreseeable that this provision could be used to punish scientists or stifle research deemed controversial, such as –
- U.S. Environmental Protection Agency research showing that toxic PFAS “forever chemicals” or other pollutants are penetrating our food chain due to inadequate regulatory or enforcement policies;
- Research showing that dangerous viruses and other pathogens are at risk of release from U.S. Geological Survey wildlife research laboratories due to the absence of independent biosafety reviews; or
- Studies showing that water quality degradation and desertification are increasing across Western rangelands due to overgrazing on Bureau of Land Management livestock allotments.
On top of everything else, such a prohibition is patently unconstitutional as applied to government scientists speaking or writing as private citizens, since the public interest in the issue would almost always outweigh any potential disruption of efficient government operations.
Even if expressing these views is legally protected, government scientists should not need to cast a profile in courage to discuss the implications of their research openly. Federal bureaucracies do not need more opportunities to quash controversial findings or dissenting views. The Biden White House should pull the plug on this ill-considered restriction.Keep ReadingShow Less
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