WASHINGTON (Legal Newsline) - Earthjustice is tired of the delay in its lawsuit against the Environmental Protection Agency that alleges reporting loopholes are keeping information regarding chemicals known as PFAS secret.
The EPA on Oct. 24 asked a D.C. federal court to issue a second stay in the case pending completion of rulemaking, but plaintiffs represented by Earthjustice are fighting. The case concerns PFAS, which are used in firefighting foam and consumer products.
Dubbed “forever chemicals” because of the human body’s inability to rid itself of them, they have likely made it into the bloodstreams of most Americans through groundwater.
States have set their own maximum contaminant levels (and hired private lawyers to sue companies on contingency fees) but the federal government's only guidance is an advisory level much higher than the states'.
A study funded by the Centers for Disease Control found that evidence linking PFAS chemicals to cancer "remains sparse." Currently, military bases and businesses do not have to report PFAS levels because they are subject to a de minimis exemption and an alternate threshold reporting exemption.
"EPA is depriving Plaintiffs and their members of critical information about the facilities releasing PFAS into their communities and the resulting toxic pollution in the air they breathe and the water they drink," attorneys for Earthjustice wrote in their response to the motion to stay.
"Indeed, EPA itself has recognized that these exemptions significantly limit the data it received for (Toxics Release Inventory)-listed PFAS and that eliminating their applicability to these PFAS would provide it with more complete information regarding the PFAS that are released."
The EPA's motion to stay says its rulemaking should be completed by Nov. 30, 2023, and "if finalized as expected, will obviate Plaintiffs' claims."
"Defendants seek a stay to complete a rulemaking that, if finalized as expected, will provide Plaintiffs everything they seek to achieve through this litigation," the motion says.
"Staying this case will not impose hardship on Plaintiffs, will free EPA to focus its limited resources on that rulemaking, and will serve judicial economy by avoiding litigation of issues that may well be rendered moot."
But Earthjustice says its plaintiffs - the National PFAS contamination Coalition, the Sierra Club and the Union of Concerned Scientists - will be harmed by a stay because they will continue to lack complete PFAS reporting.
There's also the "fair possibility" the EPA will not close the alleged loopholes when its rulemaking is finalized.
"Even if EPA does finalize its rulemaking by Nov. 30, 2023, there is no guarantee that the finalized rule would eliminate the challenged exemptions to the TRI-listed PFAS, given that rules may change during the notice-and-comment process," Earthjustice wrote.