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Democrats' rush to regulate PFAS fails, as Senate rejects Superfund measure

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By John O'Brien | Dec 10, 2019

Capitol hill

WASHINGTON (Legal Newsline) – The effort of Democrats in Congress to classify certain chemicals as “hazardous” under the federal Superfund law – a move that would have had major consequences for businesses and the lawyers who sue them - was not successful.

No agreement was reached in the Senate to adopt the House of Representatives' provision regarding PFAS – a group of chemicals used in firefighting foam and consumer products like non-stick cookware and waterproof clothing that.

Some research draws a link to PFAS (which nearly every American has been exposed to) and diseases like kidney and testicular cancer, though many argue the science is incomplete and others have suggested following the normal chemical regulatory process.

As the federal Environmental Protection Agency considers setting a maximum contaminant level that would be more official than its 70 parts per trillion health advisory, Democrats in the House took the unusual step of attempting to include PFAS in the Superfund law.

As Legal Newsline has reported, doing so would have increased liability exposure for many types of businesses, including hospitals.

The House passed its amendment in a military spending bill but the GOP-controlled Senate was not persuaded, and a deal was never reached.

Democrats still have a Superfund bill that they can push next year. A senior GOP Senate aide says, “This issue was thoroughly litigated and rejected; this is not an issue to be taken up next year.”

Lawmakers pushing for the Superfund designation were told last week "enough is enough," an industry source told Legal Newsline.

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 have bypassed 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 provided a forum for 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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