Last week, Environmental Protection Agency (EPA) Administrator Andrew Wheeler stated: “Better understanding and addressing PFAS is a top priority for EPA, and the agency is continuing to develop needed research and policies. For the first time in EPA’s history, we are utilizing all our program offices to address a singular, cross-cutting contaminant and the agency’s efforts are critical to supporting our state and local partners.”
This declaration signals to all stakeholders that the regulatory agency is serious about seeking fact-based scientific evidence about the potential toxicity of per- and polyfluoroalkyl (PFAS) compounds.
During a recent webinar, Charles M. Denton, Esq., partner at Barnes & Thornburg LLP and immediate past chair of the firm’s national Environmental Law Department, provided an overview of the emerging legal and regulatory considerations for PFAS.
According to Denton, PFAS make up a complex web of business, science, legal, and regulatory issues. The two original “long chain” compounds—PFOA and PFOS—are the oldest, most studied, and the subject of most legal and regulatory activity. There are also hundreds of other new “short chain” compounds that are less understood and about whose health effects are “not very robustly understood.”
Denton also cautioned that states are moving faster than the federal government by placing the “fear of ‘forever’ before the science.” Inconsistent state regulation makes compliance difficult and state surveys of PFAS manufacturers can trigger lawsuits.
Victor Schwartz, a prominent business defense attorney, echoed those concerns more broadly in a recent interview with Legal Newsline. Schwartz foresees an unprecedented role for trial attorneys in the regulatory aspirations of federal agencies—including the EPA—under the Biden administration.
“The trial lawyers haven’t been this close to any other president in history,” said Schwartz. He believes that the regulation and litigation interplay under the Biden Administration can be characterized as “regulation as a springboard to litigation,” and that newly adopted regulations themselves will result in more litigation.
Reaction to the EPA’s Statement
Despite EPA’s pledge to move forward quickly on PFAS issues, some have criticized the federal agency’s plan, claiming that it does not go far enough, fast enough. One went so far as to call it “an insult to the millions of Americans who are drinking water contaminated with PFAS.”
This is to be expected, especially during the transition to a new administration. However, regulatory overkill based on speculation instead of scientific fact is not practical or productive. Rather, all stakeholders should support the EPA’s effort to find the facts. Then, reasonable and rational decisions can be made by well-informed public policymakers about clean-up efforts of legacy compounds—the initial versions of PFAS long since discontinued that remain in some areas—and safe exposure levels to new PFAS compounds that are critical components of a wide variety of household and industrial products.
The Center is contributing to this effort by providing a research grant to analyze the ten most frequently cited studies that have been used in risk assessment, public policymaking, and judicial decisions on the toxicity and carcinogenicity of PFAS compounds. We seek, through this analysis, to determine the internal validity of each individual study based on accepted scientific standards for best practices and hope to publish the results in the spring of 2021.