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Industry prepares for PFAS lawsuits that could dwarf those of asbestos and tobacco

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A recent warning to the plastics industry and a complaint from an environmental nonprofit this week highlighted how companies and the U.S. government are endangering the public by contaminating them with “forever chemicals.”

Per- and polyfluoroalkyl substances (PFAS) are commonly referred to as “forever chemicals” because they persist in the human body and the environment for long periods of time. They are used in products such as firefighting foam, food packaging, stain repellents and pesticides and have been linked to a variety of health problems, including cancer and reproductive problems.

The New York Timesreported Tuesday that attorney Brian Gross recently told plastics industry executives that looming corporate liability lawsuits related to PFAS — some of which have already begun — could “dwarf anything related to asbestos” and result in “astronomical” costs.

The newspaper stated in detail:

“Do what you can while you can before you get sued,” Gross said at the February meeting, according to a recording of the event made by an attendee and shared by
The New York Times“Review all the marketing materials and other communications you have sent to your customers and suppliers and see if there is anything in those documents that is problematic for your defense,” he said. “Segregate people and find the right witness to represent your company.”

A spokesman for Gross' employer, the law firm MG+M, which defends companies in high-stakes litigation, did not respond to questions about Gross' comments and said he was not available to discuss them.

While Gross declined to comment, Emily M. Lamond, who focuses on environmental law at Cole Schotz Law Firm, told the
Just “It would be an understatement to say that the floodgates are opening.”

“When you combine tobacco, asbestos and MTBE, I think we're going to see even more PFAS-related litigation,” Lamond said, referring to methyl tert-butyl ether. The newspaper noted that “this trio together has resulted in hundreds of billions of dollars in lawsuits.”

In 2005, the U.S. Environmental Protection Agency announced that DuPont would “pay $10.25 million—the largest civil administrative penalty EPA has ever imposed under a federal environmental law—to settle EPA's alleged PFAS-related violations” and also commit $6.25 million to additional environmental projects.

In addition, the EPA has taken more recent actions as part of President Joe Biden's PFAS Strategic Roadmap, including designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Superfund Act and setting the nation's first drinking water standards for these and other persistent chemicals.

The steps of the Biden administration, such as the Just are likely to fuel future litigation. Environmental groups have called the EPA's recent moves progress, but not nearly enough – and Capital letter BAs reported earlier this month, there are concerns that PFAS cleanup could disproportionately impact communities where workers and people of color live.

In addition to calls to go further in regulation and remediation, the EPA is under pressure to retract what the Public Employees for Environmental Responsibility (PEER) organization called “false statements” in a 2023 agency research memo and press release. The group filed a formal complaint with the EPA on Tuesday, demanding a correction.

“This memo is some of the worst science I've ever heard from the agency,” said Kyla Bennett, PEER's science director, scientist and former EPA attorney, in a statement. “The fact that EPA claimed it could not find PFAS in intentionally manipulated samples is incredibly troubling.”

“Scientists around the world are finding PFAS in pesticides from active and inert ingredients, contaminants from fluorinated containers, and unknown sources,” she continued. “The EPA's claim that it 'found no PFAS' in these pesticides is not only untrue, but lulls the public into a false sense of security that these products are PFAS-free.”

When asked by journalist Carey Gillam about PEER's statement, the agency – which has 90 days to respond – said: “Because these matters are related to a pending formal complaint process, EPA has no further information to provide.”

Gillam reported that “also joining the allegations is environmental toxicologist Steven Lasee, the author of the 2022 study challenged by the EPA. Lasee is a consultant to state and federal agencies on PFAS contamination projects and served as a research associate for the EPA's Office of Research and Development from February 2021 to February 2023.”

As Gillam explains in detail in New Lede And The guard:

Amid the uproar over his work and the subsequent testing by the EPA, Lasee attempted to reproduce his original results but was unsuccessful, raising so many doubts about his own methodology that he attempted to retract his work.

Now, after reviewing EPA's internal testing data showing that the agency has indeed found PFOS and other types of PFAS in pesticides but has not disclosed those results, he has new doubts – about the agency's credibility.

“If you cherry-pick the data, you can give them whatever you want,” Lasee said.

PEER's Bennett similarly said: “You can't just ignore things that don't support your hypothesis. That's not science. That's corruption. I can only imagine they were pressured by pesticide companies.”