WASHINGTON (Legal Newsline) – When a House subcommittee holds a hearing Wednesday on the history of chemicals known as PFAS, companies that used them in their products figure to get bashed, considering the witness list is full of activists and regulators, as well as a researcher used by plaintiffs lawyers as an expert.
Attorney Jane Luxton will be outnumbered at a hearing that calls PFAS “the devil they knew,” a reference to a documentary that was shown to House members at an event earlier this year. Of the nine witnesses, only Luxton is listed as a “minority witness.”
It is not clear whether two large companies that face PFAS lawsuits – DuPont and 3M – were asked to send a representative. DuPont in a statement said it is “working closely with Congress and regulators.”
3M did not return a message seeking comment, and a spokesperson for the subcommittee did not respond to questions about how the witness list was chosen.
PFAS are a group of chemicals that were used in products like waterproof clothing and non-stick cookware and are now found in groundwater and humans. They are dubbed “forever chemicals” because they don’t leave the human body.
The Environmental Protection Agency has decided more research is needed before a toxicity level is determined; but some members of Congress want them to be declared “hazardous substances” under the Superfund law, which would create more defendants for plaintiffs lawyers to target with lawsuits.
Luxton, of Lewis Brisbois, will likely present an unpopular opinion on a panel that includes regulators in three states that are taking PFAS regulation into their own hands.
“As states and communities continue to implement their own regulations, risks increase that the result will be a patchwork of differing requirements around the country,” Luxton wrote in testimony presented to the same subcommittee for a May hearing.
“One way to avoid this outcome is to adopt workable, scientifically based federal regulations to manage these chemicals. The federal government has several statutory mechanisms it can use to regulate PFAS chemicals, but it must proceed carefully to ensure new regulations are effective in addressing the problem.”
The 12-member Subcommittee on the Environment features four California Democrats, including chair Harley Rouda. From Michigan, a state with its sights set on using private lawyers to sue companies that used PFAS, is Democrat Rashida Tlaib, who is joined by Illinois’ Raja Krishnamoorthi and New York’s Alexandra Ocasio-Cortez.
They will hear from activists Bucky Bailey and Sandy Wynn-Stelt and the co-founder of Clean Cape Fear, Emily Donovan, during the first panel.
Panel two features Jamie Dewitt, a professor at East Carolina who serves on a PFAS response team in Michigan and has been listed as a witness for a plaintiff represented by the law firm Varnum LLP.
Another member of that Michigan team, Steve Sliver, will testify, as will environmental regulators Catherine McCabe of New Jersey and Robert Scott of New Hampshire. Both states have hired the firm Kelley Drye to represent them in PFAS litigation on contingency fees.
Glenn Evers, a former scientist at DuPont who claims the company covered up the threat of PFAS, is also scheduled to speak.
Some of the existing research on PFAS comes as a result of an effort by plaintiffs lawyers who took on DuPont over the release of PFOA, which is in the group of PFAS, around one of its plants near the Ohio River in West Virginia.
Personal injury lawyers and DuPont agreed to a plan that created a so-called “science panel” and had the company pay for the medical monitoring of residents around the plant. Medical monitoring is a controversial claim for relief on behalf of uninjured plaintiffs that would drive up the cost of a settlement and with it, the amount their lawyers could recover.
By 2012 and after studying more than 30,000 participants, the science panel said there was a probable link to six diseases, yet many claim not enough adequate scientific evidence has been gathered yet.
The cases paid off for lawyers in 2017, when DuPont ponied up $671 million to settle 3,500 lawsuits.
Now, the Democrat-led House has backed a measure to classify PFAS as hazardous substances under the Superfund law. It did this while the EPA considers creating a toxicity level – it has already issued an advisory for water systems with more than 70 parts per trillion to notify their state regulators.
States have passed much lower standards while the EPA conducts further review. Vermont set a health advisory at 20 parts per trillion, and New York is recommending half that.
New Jersey’s standard is 13-14 ppt depending on the chemical, and New Hampshire’s varies from 11-18 ppt.