The U.S. Court of Appeals in Philadelphia has upheld a U.S. Environmental Protection Agency health advisory for GenX, one of thousands of “forever” chemicals known as PFAS, rejecting a claim by the manufacturer of Chemours chemicals that the agency has no legal jurisdiction because the warning is “not.” a final agency action.”
The EPA finalized drinking water limits for six types of PFAS chemicals, including GenX, in April. But it had previously published the warning in 2022 as a public document to point out the harms of exposure to this class of chemicals above certain amounts.
A coalition of community, public health and environmental justice groups had intervened in the case on behalf of the EPA. While they applauded the July ruling that did not halt the advisory, the Washington, D.C., appeals court is expected later this year to hear a separate case challenging the legality of the final limits on ‘potable water.
Some believe that the challenge filed by Chemours, other manufacturers and water supply trade groups is an attempt to ask the US Supreme Court to consider the case in light of the Loper Bright decision that the court overturned deference to the opinion of the federal agency when the statutory language underpinning a regulation is ambiguous.
Chemours is a former unit of global chemicals company DuPont de Nemours Inc. which was split in 2015.
Although legal briefs for this case have not yet been filed, John Gardella, an attorney with Boston-based CMBG3 Law who has litigated PFAS cases, says the challengers will likely raise the issue of the science used to determine the cost-benefit analysis for the PFAS limit in drinking water. The American Water Works Association and the Association of Metropolitan Water Agencies published a report in 2023 based on research by consultant Black & Veatch that estimates the cost of meeting the drinking water standard at nearly three times higher than the $1.5 billion per year figure cited by the EPA.
Erik Olson, senior director of health strategy at the Natural Resources Defense Council (NRDC), part of the coalition of groups intervening in the two appeals court cases, says the water groups’ analyzes “are not credible and should be dismissed.” He said: “Given the high risk of cancer and other health problems from PFAS chemicals, the costs of compliance are entirely reasonable. EPA conducted a conservative cost-benefit analysis. In fact, EPA chose to not quantify or monetize the benefits which are, in fact, enormous.”
No matter how the court in Washington, DC ultimately decides, “I have no doubt [the legality of the drinking water standard] it will be tried to be brought to the Supreme Court level at some point,” Gardella said in an interview.
Since 2017, Chemours has been under a consent order with the North Carolina Department of Environmental Quality to reduce PFAS leaks into air, water and soil. The company uses hexafluoropropylene oxide dimer acid and its ammonium salt, collectively called GenX, to make polymers at its facility in Fayetteville, North Carolina, near the Cape Fear River . Traces of the chemical have been detected in surface water, groundwater, rainwater and drinking water, and the EPA has identified manufacturers as a potential source.
“Chemours fought this level of health advisory because of the same motivation behind all of their actions: money,” said Dana Sargent, executive director of Cape Fear River Watch, a group that works on behalf of citizens affected by the pollution. of the water of the Chemours plant, in a statement. . “We are grateful [judges] rejected Chemours’ ominous claim.”
Chemours claims that the Philadelphia court ruling was based on purely procedural grounds. In a statement, the company said: “We hope the D.C. Circuit will consider the merits of our arguments in connection with our pending challenge to [regulation],” which the company adds uses “the same scientifically weak analysis.”
The Philadelphia court decision means the EPA can continue “to fulfill the important role of informing the public about the potential health risks of unregulated chemicals in drinking water,” says Sarah Tallman, NRDC Senior Counsel .
