WASHINGTON (Legal Newsline) - To no one's surprise, the latest PFAS Action Act being pushed by Democrats has made it out of the House environment and climate change subcommittee and is on to the Committee on Energy and Commerce.
It was the beginning of a new effort to regulate chemicals known as PFAS. Subcommittee member Debbie Dingell, a Michigan Democrat, introduced the bill in April. It contains the same provisions of a previous iteration of the bill that passed the House but never the formerly Republican-controlled Senate.
Among the biggest concerns for Republicans is the classification of PFAS as a hazardous substance under the Superfund law, which would open countless businesses to liability.
North Dakota Republican Kelly Armstrong called the measures in the bill "broad, unscientific actions."
"Throughout today a number of my Democratic colleagues have argued during debate on these amendments that people don’t have to worry about Superfund liability if they don’t cause any environmental harm. This argument’s not accurate," he said.
"Superfund liability, as lawyers call it, is strict. That is, a party doesn’t have to have done anything wrong or even accidental if they have involvement somehow they are liable. Period. End of story.
"The strict liability is what causes our concern…"
Republicans formalized their concerns in a batch of amendments that were rejected.
Chemicals in the PFAS family are used in firefighting foam and consumer products like non-stick cookware and waterproof clothing, while Armstrong noted their importance to the energy sector, including solar and wind.
They have been dubbed "forever chemicals" because they don’t leave the human body once they make it in.
Research provided by a PFOA settlement earlier this century drew links to six diseases like kidney and testicular cancer, but many consider those results far from a complete study, considering the only individuals who were studied lived in the surrounding area of a DuPont plant in West Virginia.
Epidemiologist Kyle Steenland, of Emory University’s School of Public Health, wrote in an article funded by the Centers for Disease Control that evidence linking PFAS and cancer “remains sparse.”
The Environmental Protection Agency under President Trump refused to set a formal toxicity level, and Steenland’s article agreed that doing so would be premature – given the lack of research.
Noting the inconsistencies of cancer rates, as well as what chemical (there are thousands in the PFAS family) was the subject of the exposures, his and Andrea Winquist’s article called the results of the various studies “informative, but not entirely conclusive.”
Democrats have accepted the results of the contested C8 study and used them to try to push PFAS measures through in the past. Notably at stake in the new PFAS Action Act is whether the chemicals will be designated as “hazardous” under the federal Superfund law, which would open many businesses to liability for cleanup of sites like landfills and public water systems.
House Democrats approved that measure in a spending bill but in 2020 their colleagues in the Senate were told to give up because it had no Republican support.
Some plaintiffs lawyers have a financial interest in the bill passing. They’ve already scored contingency fee contracts from several states that passed their own PFAS regulations that are much stronger than the EPA’s current advisory of 70 parts per trillion.
Some of those lawyers have contributed to the officials who hired them.
Lawsuits are stacking up in a federal multidistrict litigation in South Carolina against companies like 3M and DuPont, while one class action is pending in Ohio that seeks to include every person exposed to PFAS (nearly every American), despite not alleging any adverse health effects.
The PFAS Action Act would require the EPA to establish formal regulations within two years, designate PFOA and PFOS as hazardous air pollutants and place discharge limits on industrial releases, among other things.