On Monday, EPA Administrator Andrew Wheeler stated during an interview with The USA Today Network that a manufacturer of various PFAS should switch its production to “newer, less dangerous” forms of PFAS, including the GenX class of PFAS. The statement came in advance of a visit to a PFAS manufacturing facility in North Carolina. “Some of the newer versions, we believe — have been approved by EPA — to be safer than what they replace,” Wheeler said. The statement may raise eyebrows for anyone following the EPA’s actions with respect to PFAS for several reasons.
First, the EPA’s last Toxicity Assessment from 2018 regarding GenX chemicals examined all available literature and studies regarding GenX and found that “overall, the available oral toxicity studies show that the liver is sensitive to GenX chemicals, and the kidney and thyroid are sensitive to PFBS.” Many read these findings to suggest that the EPA would implement exposure limits for GenX – a finding that does not necessarily comport with EPA Administrator Wheeler’s suggestion this week that the GenX chemicals are safe. However, the wording by Administrator Wheeler may have been deliberate and careful, as he did not state that the GenX chemicals are absolutely safe; rather, he merely stated that the chemicals are “safer” than PFOS and PFOA – two original PFAS that have been the subject of much litigation and media attention.
Second, Administrator Wheeler’s statements seem to suggest the possibility that the EPA may not be going down a path of regulating all PFAS as a chemical class, a move that many believed that the EPA wished to carry out, even though it would mean regulating over 7,000 chemicals in one fell swoop. If the EPA is willing to concede that there are, in fact, “safe” PFAS types, then regulating the chemicals as a class would make little sense and be contradictory to scientific principals.
While the statement is merely one statement and has no binding impact in any way, it nevertheless casts further doubt on the EPA’s intentions and plans regarding regulation of PFAS. Companies that manufacture or utilize PFAS in their business need to pay close attention to the EPA’s statement, both official and unofficial, as they may lend clues to future regulatory activity by the EPA. These clues can assist with risk assessment and compliance initiatives.
CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.
Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact any of our PFAS – Toxic Torts Team: Jessica Deyoe, Suzanne Englot, Alexandra Fraher, or John Gardella.