House Dems get screening of anti-PFAS movie, seek regulation as trial lawyers and states use litigation

By Daniel Fisher | May 15, 2019

WASHINGTON (Legal Newsline) - Congressional Democrats launched their latest push for blanket regulations on widely used industrial chemicals by screening a highly critical documentary film the night before, where invited guests included a partner at a law firm that has filed a lawsuit that seeks damages on behalf of every U.S. citizen.

The screening of “The Devil We Know” preceded a Wednesday hearing before the Environment and Climate Change Subcommittee on 13 bills that would place strict controls on thousands of chemicals known as PFAS. Dubbed “forever chemicals” by environmentalists and lawyers, PFAS are highly stable compounds that persist in the environment for years and can be found in the blood and tissue of virtually everyone in the U.S.

Because they are easily detected in groundwater, PFAS have become grist for litigation by private lawyers. DuPont agreed in 2017 to pay $670 million to settle lawsuits over PFOA, a chemical in the PFAS family that was used in Teflon nonstick coating and other products, and still faces extensive multidistrict litigation. 

Plaintiff lawyers are busily recruiting states and cities as clients to sue over PFAS contamination. New York and New Jersey have sued 3M and other companies over PFAS emissions from firefighting foam.

The proposed bills could make such litigation easier to pursue by placing specific limits on PFAS emissions that manufacturers would have difficulty controlling if the chemical is contained in widely used products. The PFAS Action Act of 2019, sponsored by Reps. Debbie Dingell (D-MI) and Fred Upton (R-MI), would require the Environmental Protection Agency to declare PFAS as hazardous chemicals eligible for Superfund cleanup funds, while another bill would ban them outright. 

Bills requiring municipal water systems to remove them from drinking water would provide ample fodder for class action lawsuits seeking repayment of billions of dollars for filtering systems. It's the second hearing in two months to address PFAS.

Critics say it’s premature to ban all PFAS chemicals before their hazardous effects have been determined. Numerous epidemiological studies, including one funded by DuPont as part of its class action settlement, have found associations between PFAS exposure and a variety of conditions including liver damage, heart disease and thyroid disease. 

But the CDC, in a broad review of the research in 2018, said the studies so far aren’t conclusive. Republicans on the subcommittee said the EPA already has sufficient power, under the Clean Water Act and other laws, to control PFAS compounds that are proven unsafe. 

“If you were asked to regulate a chemical that was safe, would you want to do that?” asked Rep. John Shimkus (R-IL), of Brian Steglitz, manager of the Ann Arbor, Mich. water system.

“We obviously have limited resources, so we’d want to be focusing on the contaminants that affect public health,” said Steglitz, who in prepared remarks said Ann Arbor would have to spend $850,000 up front and $160,000 a year to filter PFAS out of drinking water.

“I don’t know how they can do 5000” chemicals, said Tracy Mehan, executive director for government affairs of the American Water Works Association. “I don’t know how you’d do it. Unless you acted without information, without a risk assessment, without benefit costs, without knowing technology, how you do that whole family. It just defies my understanding.”

Lawyer interest in the proposed regulations is undoubtedly strong. Rep. Frank Pallone (D-NJ) praised his state’s lawsuit against manufacturers of firefighting foam – which involves private lawyers working on a contingency fee, rather than letting state environmental lawyers handle the case -- and said “polluters are responsible for contamination and they should be responsible for the cleanup.”

At the film screening Tuesday night, invited guests included Robert Bilott, a partner with Taft Stettinius & Hollister in Cincinnati, who is pursuing a nationwide class action on behalf of anyone with detectable PFAS in their bodies. 

Instead of seeking damages for any specific health problems, it seeks damages for battery, as well as negligence and conspiracy. Michigan’s new Democratic Attorney General Dana Nessel is soliciting pitches from private lawyers who would fund the litigation in exchange for a percentage of any verdict or settlement.

Among the proposed bills discussed at the subcommittee meeting on May 15 are:

-HR 2377, the Protect Drinking Water from PFAS Act of 2019, which would set maximum PFAS levels in drinking water;

-HR 2566, which would require the EPA to establish a “Safer Choice” program for labeling PFAS-free cookware;

-HR 2600, which would prohibit the manufacture of any new PFAS chemicals within a year and existing PFAS within two years;

-HR 2570 would impose a “user fee” on manufacturers to pay the ongoing operations and maintenance costs of water treatment works and drinking water treatment plants;

-HR 2577, which would add PFAS to the Emergency Planning and Community Right-To-Know Act of 1986, requiring companies to report releases; and

-HR 2605, which would require the EPA to issue a final rule within 180 days declaring PFAS a hazardous air pollutant. 

Among the witnesses at Wednesday's hearing was Jamie DeWitt, an East Carolina University professor who is on Michigan's newly formed PFAS panel that will help the state set its own regulations while it waits on EPA action.

DeWitt has been listed by plaintiffs attorneys as an expert witness for a PFAS lawsuit in Michigan.

Preaching patience at the hearing was Lewis Brisbois partner Jane Luxton, co-chair of the firm's Environmental and Administrative Law Practice.

"Imposing blanket regulations on thousands of PFAS chemicals – as some of the proposed legislation seeks to do – when scientists agree we have at best limited information on most, risks losing focus on the highest priority concerns," her submitted testimony says.

"An across-the-board approach would impose extraordinary burden and cost on federal agencies, states, and local governments, requiring funds that today’s federal and state regulatory agencies simply do not have, while diluting resources that should be on targeted on the highest risk chemicals."

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