Groups Bring Suit Over Secret Approval Process for PFAS Chemicals

WASHINGTON (CN) — Bemoaning the government’s clandestine process of approving widely unregulated PFAS chemicals, environmentalists brought a federal complaint Wednesday to make the chemical program transparent.

Short for perfluoroalkyl and polyfluoroalkyl substances, PFAS are a class of chemicals ubiquitous in commercial products and disturbingly linked to cancer, infertility, pregnancy complications and other toxic effects.

The Environmental Protection Agency has allowed hundreds of new PFAS chemicals to enter commerce under the Toxic Substances Control Act since 2006, continuing to do so in recent years even as new research about the dangers of PFAS emerges.

In their complaint Wednesday, filed in Washington, five groups led by the Environmental Defense Fund contend that these approvals occur in “a black box, thwarting the ability of the public to be informed and to provide input.”

The groups have been tracking the EPA’s chemical reviews with a particular focus on the more than 1,100 “PMN” applications for new manufacturing since the Toxic Substances Control Act was strengthened in 2016.

“But plaintiffs’ efforts have been unlawfully stymied by EPA’s black-box approach in which: EPA fails to timely notify the public when a PMN has been received; fails to timely disclose the complete PMN application, including all supporting documents, to interested members of the public; and abets manufacturers’ attempts to withhold information as confidential that is not entitled to confidential treatment under TSCA,” the complaint says. “In doing so, EPA repeatedly violates TSCA’s numerous disclosure requirements, thereby denying Plaintiffs information to which they are legally entitled.”

In approving these chemicals without restriction, the EPA is certifying that the substances are not likely to pose an unreasonable risk.

“But without the health and safety information that is submitted with the PMN, the public is left in the dark, with little-to-no ability to comment on the application before EPA makes a determination, to understand the basis for EPA’s decision, or to assess its validity,” the complaint states.

In one recent case detailed in the filing, the EPA identified a potential risk on one PMN application in 2017 only to approve the substance despite those risks two years later.

It is one of 204 chemical applications that form the basis of the groups’ lawsuit. About half of the 85-page complaint is dedicated to identifying these applications in 10 tables.

After the agency initially declined to comment, an EPA spokesman provided an anonymous statement defending what has been done to date "to enhance transparency around our processes for approving new chemicals."

"It is important to note that EPA experts met for months with these groups after they noticed their intent to sue on September 3, 2019, in effort to improve transparency and have worked with them in good faith," the statement reads. "Nevertheless, the groups filed the same lawsuit they noticed six months ago. If these groups had a genuine interest in transparency they would continue to work with EPA to implement improvements instead of filing lawsuits."

Tosh Sagar with Earthjustice, an attorney for the advocacy groups, said in a statement Wednesday that the public has a right to know about chemicals before they hit the market.

“Trump’s EPA instead hides health and safety studies and other key information, just so that industry can have it easier,” Sagar said. “Ignoring TSCA’s transparency requirements makes it more likely that dangerous chemicals are reaching our homes and workplaces.”

The Environmental Protection Agency declined to comment on the pending litigation.

As quoted in the complaint, the director of the Center for Disease Control’s National Center for Environmental Health/Agency for Toxic Substances and Disease Registry has said PFAS contamination presents “one of the most seminal public health challenges for the next decades.”

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Editor's Note:

This story was updated to include a Thursday statement from the EPA, after the agency had initially declined to comment on pending litigation.

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