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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 Times reported 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 B reported 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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UN Experts Allege Human Rights Violations by PFAS Chemical Giant in North Carolina
In a letter to Chemours, the experts said they were worried about the company's "apparent disregard for the well-being of community members, who have been denied access to clean and safe water for decades."
Nov 28, 2023
United Nations human rights experts have expressed concerns over "alleged human rights violations and abuses" against people living along the lower Cape Fear River in North Carolina due emissions of per- and polyfluoroalkyl substances, or PFAS, from a Fayetteville chemical plant.
Five U.N. experts signed letters to Chemours—the plant's current operator—as well as DuPont, Corteva, the U.S. Environmental Protection Agency (EPA), and Dutch environmental regulators. The action marks the U.N. Human Rights Council's first investigation into an environmental problem in the U.S., The Guardian reported Tuesday.
"We are especially concerned about DuPont and Chemours' apparent disregard for the well-being of community members, who have been denied access to clean and safe water for decades," the U.N. experts wrote in the letter to Chemours.
"We hope the U.N.'s action will induce shareholders to bring DuPont and Chemours in line with international human rights law."
The Fayetteville Works manufacturing plant has been releasing toxic PFAS into the environment for more than four decades, according to the allegations detailed in the letter. PFAS dumped in the Cape Fear River have made it unsafe to drink for 100 river miles, and pollution from the plant has contaminated air, soil, groundwater, and aquatic life.
PFAS are a class of chemicals used in a variety of products from nonstick, water-repellent, or stain-resistant items to firefighting foam. They have been linked to a number of health issues including cancers and have earned the name "forever chemicals" for their ability to persist in the environment and the human body. One study found PFAS in 97% of local residents who received testing.
The letter also repeated allegations that DuPont, the plant's previous owner, and Chemours, a spinoff company, had not taken responsibility for cleaning up the local environment and compensating community members, and that DuPont had known about the dangers of PFAS for several years, but chose to hide this information from the public.
"We remain preoccupied that these actions infringe on community members' right to life, right to health, right to a healthy, clean, and sustainable environment, and the right to clean water, among others," the U.N. experts wrote.
The letters were sent in response to a request made in April by Berkeley Law's Environmental Law Clinic on behalf of local environmental advocacy group Clean Cape Fear. In the request, the groups said the matter was particularly urgent because Chemours plans to expand its making of PFAS at the plant.
The U.N. experts, or special rapporteurs, reviewed existing legal and scientific documents and media reports, rather than completing their own investigation, NC Newsline reported. They sent the letters in September, but made them public on Thanksgiving, 60 days later, according to Clean Cape Fear. During that time, Chemours, Corteva, and the Dutch regulator responded, but DuPont and the EPA did not.
"We are grateful to see the United Nations take action on behalf of all residents in our region suffering from decades of human rights abuse related to our PFAS contamination crisis," Clean Cape Fear co-founder Emily Donovan said in a statement. "Clearly, the U.N. recognizes international law is being violated in the United States. We find it profoundly troubling that the United States and DuPont have yet to respond to the U.N.'s allegation letters."
Clean Cape Fear called Chemours' response "classic corporate gaslighting." Chemours claimed to be "a relatively new company," despite being staffed by senior DuPont executives, focused mainly on the PFAS GenX despite the presence of several other pollutants, and focused on the impacts on private well owners, ignoring public utility customers who must pay to filter their own water because of PFAS contamination. However, the letter did acknowledge that Chemours knew about the PFAS pollution before the public learned of it in 2017 and tried to both resolve it internally and prevent the public from finding out.
"If corporate malfeasance had a name in N.C., it would be Chemours," said Rebecca Trammel, leadership team member of Clean Cape Fear and founder of Catalyst Consulting & Speaking. "Impunity is the accomplice of injustice. It is the obligation of governments and regulatory agencies to ensure that innovation, economic gain, and progress are in service of humanity, not at its expense. I extend my deepest thanks to the United Nations for its defense of our right to safe water and life itself."
The letter to the EPA focused in part on its failure to study the health impacts of PFAS exposure on the community, while the letter to the Netherlands focused on imports of GenX from that country to Fayetteville Works.
Clean Cape Fear said it hopes the letters will put pressure on both the private companies and the government regulators to act.
"We hope the U.N.'s action will induce shareholders to bring DuPont and Chemours in line with international human rights law," the group tweeted, noting that both companies are publicly traded.
"We also hope that the risk of being named a violator of international human rights laws will give the U.S. EPA the political courage to do what it must to curb toxic PFAS pollution in North Carolina and nationwide," the group added.
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Chemical Companies Are Spending Millions to Lobby Lawmakers on Toxic Forever Chemicals
Our new research uncovers the potential scale of their efforts—and the cost to the public.
Nov 11, 2023
For decades, chemical companies have pumped out products that are poisoning families nationwide. Now, PFAS “forever chemicals” have infiltrated our homes, water, environment, and bodies.
Long-overdue federal actions to address this crisis have finally been set in motion. But at the same time, companies are pouring millions of dollars into lobbying on PFAS and other issues. Our new research uncovers the potential scale of their efforts—and the cost to the public.
PFAS Have Infiltrated Our Homes and Our Bodies
PFAS (per- and polyfluoroalkyl substances) are also known as “forever chemicals” because they don’t easily break down in the environment. Chemical companies like Dupont and 3M have manufactured them for decades; today, there are nearly 15,000 different PFAS found in products we use every day.
As a result, they’ve spread throughout our drinking water (including bottled water), our environment, and the blood of 97% of people who live in the United States.
This is a public health crisis. Research has linked PFAS to all sorts of health problems, from reproductive harm to cancers. To add insult to injury, we’re also seeing growing evidence that chemical companies concealed the risks of PFAS and misled the public. And as support grows for regulating these chemicals, companies are throwing money into influencing lawmakers and regulators.
Chemical Companies’ Lobbying Arsenal on PFAS Regulations
To find out the extent of the chemical companies’ campaigns, we dug into quarterly lobbying reports for companies that were or are current major producers of PFAS. We also looked at reports for the American Chemistry Council, the industry’s biggest trade group. We focused on Congress’s 2019-20 and 2021-22 sessions, which saw over 60 and 70 bills introduced with language on PFAS, respectively.
Of those, only four became law, along with four Defense Authorization Acts that included PFAS amendments. None came close to fully addressing PFAS pollution or holding polluters accountable.
So far, the chemical industry has succeeded in turning its profits into political power.
During this time, the lobbying disclosures of eight major PFAS-producing companies mentioning “PFAS” total $55.7 million. The American Chemistry Council also lobbied on PFAS, with reports mentioning PFAS totaling $58.7 million. And companies that use or whose products may contain PFAS (including oil majors like Shell and Exxon and food giant Nestlé) lobbied on PFAS during this time, too.
We also dug into campaign contributions from PFAS backers to members of the Senate Committee on Environment and Public Works. This committee reviewed the PFAS Action Act of 2019 and 2021, which included some of the strongest measures to protect us from PFAS. Though it passed the House in both sessions, the bill died in the Senate Committee.
We found that during the same time frame (2019-2022), two-thirds of Committee members received donations from the eight major chemical companies we reviewed. More than half received money from the American Chemistry Council.
Without Accountability, the Public Will Continue Paying for This Public Health Crisis
For decades, chemical companies took advantage of our weak chemical regulations to mislead the public and continue profiting off of PFAS. Now, we have a public health crisis that demands strong regulations.
One of our most powerful clean-up laws in the country is the Superfund program. Under the program, companies using chemicals deemed “hazardous” must monitor and report on them. The program also allows the Environmental Protection Agency (EPA) to direct a clean-up and get polluters to pay for it.
The EPA has recently proposed to regulate some forms of PFAS under the Superfund program. However, trade groups helmed by the American Chemistry Council have directly opposed Superfund status for PFAS. Polluters know the clean-up costs will be huge.
Communities shouldn’t have to choose between unaffordable water bills and toxic water. Polluters need to pay their fair share to clean up what they contaminated.
Another enormous cost will be cleaning up, monitoring, and protecting families from PFAS specifically in drinking water. In 2023, the EPA proposed nationwide standards that limit some PFAS in drinking water. The agency estimates that complying with these rules would cost water systems up to $1.2 billion over 80 years.
If PFAS polluters dodge accountability, the public will be left with these costs. Water systems forced to pay the entire cost of PFAS monitoring and treatment would likely raise water rates, pulling from families’ pockets. If the community can’t afford the costs, households will be left with toxic water.
This would be unconscionable during a water affordability crisis that hits low-income families hardest. Moreover, low-income communities are more likely to face PFAS pollution problems.
Communities shouldn’t have to choose between unaffordable water bills and toxic water. Polluters need to pay their fair share to clean up what they contaminated.
We Need Strong Policies to Protect Us From PFAS and Polluters
So far, the chemical industry has succeeded in turning its profits into political power. We’ve seen few policies that protect families from more PFAS and hold PFAS polluters accountable. But we can’t allow the industry to get away with this any longer.
That’s why we’re exposing the chemical industry and fighting for the policies that will finally protect us. We’re calling for laws and rules that:
1. Regulate PFAS as a class of chemicals:
So far, attempts to address PFAS have been a morbid game of whack-a-mole. Companies have phased out some PFAS, only to introduce other, slightly different ones. However, research shows that newer PFAS have similar impacts on public health and the environment.
The EPA needs to establish a broad definition of PFAS, and regulations must cover them all together. The agency must also finalize its rules to put two PFAS under the Superfund program and set enforceable limits on PFAS in drinking water. Ultimately, it must ban all non-essential uses of all PFAS.
2. Support public water and sewer systems to test and remove PFAS:
Small municipal water systems have so far borne the brunt of costs for PFAS clean-up, monitoring, and protections. Federal legislation has begun mobilizing funds, but it’s not enough.
That’s why we need the WATER Act. This wide-ranging bill provides needed funds to address PFAS, as well as historic funding for other water infrastructure needs.
3. Don’t let big polluters off the hook:
The chemical industry is trying to narrow the scope of regulations, and various polluters are seeking to dodge responsibility for PFAS clean-up. This would shift the burden to the public, who would pay through their water bills or threats to their health.
Congress and the EPA need to reject efforts to narrow the definition of PFAS or limit the scope of liability for clean-up. Polluters should pay to clean up their toxic PFAS mess.
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