PFAS Companies Take Heat From Congress

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Last week, the House Environmental Oversight Committee held a third and final hearing on PFAS issues in the United States. The September 10 2019, hearing, which focused on PFAS contamination by industrial producers, served as a follow-up to the subcommittee’s July 24, 2019 hearing on the human impact of PFAS contamination and state-level efforts to regulate the chemicals. DuPont, its spinoff company Chemours, and 3M all sent representatives to Washington D.C. to attend.

In anticipation of the hearing, DuPont issued a press release defining their past and future positions on PFAS chemicals. The company disclaimed any prior manufacture of firefighting foams, and stated that they do not make PFOA, PFOS, or GenX. Additionally, they made several pledges for future remediation of the lingering effects of PFAS use on the environment. While states are leading the charge on PFAS regulation, and federal regulation is likely to come in the near future, the pressure has ratcheted up on companies that have manufactured or used PFAS chemicals in their products and who are facing increased litigation. DuPont has attempted to get in front of the issues by promising to eliminate the use of long chain PFAS in “recently integrated operations” by the end of 2019, and to eliminate the purchase and use of PFAS based firefighting foams by the end of 2021. Additionally, the company pledged to grant royalty free licenses to companies wishing to pursue PFAS remediation using DuPont’s water treatment resin technologies, and to fund university grants for new, innovative PFAS remediation processes.

Prior to the hearing, environmental advocacy groups released documents alleging decades of knowledge by PFAS-using companies of the risks of the chemicals. Contained in the documents are allegations that the companies knew of the toxicity of the substances for nearly 60 years, observed the persistence of the chemicals in their own workers’ systems, and noted elevated risks of cancer among people who worked with perfluorinated chemicals for at least 30 years. At the July hearings on PFAS in D.C., industry advocates countered these theories, and cited statements from the Director National Institute of Environmental Health Sciences cautioning premature conclusions regarding the risks of PFAS, given “limited findings that support [particular] adverse health effects” and given differences in toxicity mechanisms in animal species on whom testing has occurred.

Setting a punitive tone for a day that was subtitled as “The Devil They Knew” in reference to a Netflix documentary on PFAS, subcommittee chairman Harley Rouda (D-California) declared that PFAS contamination was a “national emergency,” and that the goal of the hearing was to “demand accountability for the crisis.” Former Minnesota Attorney General Lori Swanson, who led an eight-year $850 million suit against 3M in Minnesota, provided testimony and alleged that the company had known about the health dangers of the chemicals for 50 years and had concealed that information from the public. The plaintiff’s attorney Rob Bilott , who led a $670 million suit against DuPont, testified regarding what he believed the Delaware company and Chemours knew about the dangers of the compounds. 

Senior Vice President of Corporate Affairs Denise Rutherford represented 3M at the hearing and testified that the company had begun to eliminate production of PFOA and PFOS compounds in 2000. However, she went on to tell the committee that there was no cause and effect showing a relationship of PFAS chemicals with adverse health effects, referring to studies from the Australian PFAS Expert Health Panel, the Michigan Science Panel and the Center for Disease Control’s Agency for Toxic Substances and Disease Registry. Appearing for Chemours, President of Fluoroproducts Paul Kirsch testified that the company supported legislative efforts that used a scientific approach, but also stated that the company could not be held responsible for decisions or actions made by other companies in the past. Chief Operating and Engineering Officer Daryl Roberts appeared for DuPont and also expressed the company’s support for federal PFAS legislation and touted DuPont’s own efforts in remediation referred to above. After hours of questioning by the committee, not surprisingly none of the representatives of the companies would commit to blanket compensation of those who claim to have been harmed by PFAS chemicals. Further, of the three, only Roberts agreed that PFOA and PFOS should be designated as a hazardous substance under the Superfund Law. 

While DuPont’s stated commitment to PFAS remediation efforts is admirable, overall the hearings appear to have only further stoked public and governmental ire against all manufacturers of the chemicals. One should expect the momentum from this hearing to lead to more lawsuits against these and other companies, as well as an acceleration of federal regulation efforts.