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'Fake news': Senate hasn't reached deal on PFAS, sources say, as Dems told 'enough is enough'

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By John O'Brien | Dec 5, 2019

Capitol hill

WASHINGTON (Legal Newsline) – Reports of a U.S. Senate deal that would classify certain chemicals as “hazardous substances” under the federal Superfund law (and give trial lawyers more targets for lawsuits as a result) are false, say sources familiar with the issue.

A Thursday report in E&E Daily cited sources who claimed a deal targeting the chemicals PFOA and PFOS – part of the PFAS group – had been struck, but Legal Newsline sources say that no such agreement exists.

It’s all part of an effort by mostly Democrats who want PFAS to be labeled as hazardous under CERCLA – the federal Superfund law. Previous Legal Newsline coverage explored what types of companies could be exposed to extra liability if that were to occur. Currently, DuPont and 3M are the most common defendants.

Though the Democrat-led House adopted the measure in a military-spending bill, the GOP-controlled Senate has taken no similar action – despite what was told to E&E Daily, according to sources.

"This is fake news," one Congressional aide said.

And according to an industry source, “If this was true, they would have given it to Politico.”

In fact, sources say the Superfund issue was dropped altogether the night before the E&E Daily report, as Democrats rejected a proposal that prioritized funding for cleaning Air Force bases.

Lawmakers pushing for the Superfund designation have been told "enough is enough," the industry source said.

Many military bases show levels of PFAS, which was used in fire-fighting foam, as well as consumer products like non-stick cookware and waterproof clothing.

Nearly every American has levels of PFAS in their blood, but the exact health effects aren’t known. Some science (the result of a medical monitoring settlement funded by DuPont) points to links to diseases like kidney and testicular cancer, while detractors say not nearly enough studies have been conducted.

Industry groups have come out against the designation. The Aerospace Industries Association warned that airports would be liable for cleanup costs if PFAS chemicals are included in the Superfund law.

The U.S. Chamber of Commerce and organizations representing airlines, airports and the packaging, chemical, and petroleum industries signed on to another letter. The U.S. Chamber Institute for Legal Reform owns Legal Newsline.

The Superfund measure would bypass the normal regulatory process, under which the EPA studies the scientific evidence before recommending a chemical be placed on the list of hazardous pollutants, after which it is submitted for public notice and comment and finally adopted as a formal rule.

And unlike a regulatory rule, which can be challenged as being arbitrary and capricious under federal law, an act of Congress is extremely difficult to overturn except if it is a clear violation of the Constitution.

Meanwhile, activists continue to push for regulation as the Environmental Protection Agency considers a toxicity level more official than its 70 parts per trillion advisory.

The House Environment Subcommittee has provided a forumfor those advocates, holding a series of hearings with titles like “The Devil They Knew,” a reference to a PFAS documentary.

One hearing included only one minority witness among nine total. The hearing featured activists, regulators in states that are setting their own PFAS toxicity levels and a scientist who has also been listed as a witness for a PFAS plaintiff in Michigan.

States like Michigan and New Jersey have taken to deciding their own toxicity levels while the EPA determines its, and have also hired private lawyers to pursue lawsuits on contingency fees.

A federal multidistrict litigation proceeding has commenced in South Carolina, where more than 100 lawsuits have been consolidated. Some have called PFAS “the next asbestos” because of the potential for decades of litigation, and Douglas & London is listed among plaintiffs firms like Motley Rice and Napoli Shkolnik on the MDL docket.

Douglas & London, which has hired lobbyists to push their PFAS agenda at Congress, featured in the C8 litigation on which the coming movie “Dark Waters” is based.

That litigation provided some of the existing research on PFAS. Plaintiffs lawyers 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 DuPont paid for the medical monitoring of residents around the plant. 

Medical monitoring is a controversial claim for relief on behalf of uninjured plaintiffs that can drive up the cost of a settlement and with it, the amount lawyers can 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. Those diseases include kidney and testicular cancer.

The cases paid off for lawyers in 2017, when DuPont ponied up $671 million to settle 3,500 lawsuits.

From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.

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