A U.S. appeals court in Philadelphia upheld the Environmental Protection Agency’s health advisory for GenX, one of thousands of “forever” chemicals known as PFAS, rejecting arguments by chemical maker Chemours that the agency lacked legal jurisdiction because the warning was “not a final agency action.”
The EPA finalized drinking water limits for six PFAS chemicals, including GenX, in April, but previously issued a public advisory in 2022 highlighting harms from exposure to the chemicals above certain levels.
A coalition of community, public health and environmental justice groups intervened in the case on the EPA’s behalf. They welcomed the July ruling that did not halt the recommendation, but a separate case challenging the legality of the final drinking water restrictions is scheduled to be heard in the Washington, D.C. Circuit later this year.
The challenge filed by Chemours, other manufacturers and water supply industry groups is seen by some as an attempt to petition the U.S. Supreme Court to consider the case. Loper Bright overturned the court’s decision Deferring to Federal agencies when the legislative language underlying a regulation is ambiguous.
Chemours is the former division of global chemical company DuPont de Nemours, which was spun off into a separate company in 2015.
Briefs in the case have not yet been filed, but John Gardella, an attorney with the Boston-based CMBG3 law firm that has handled the PFAS litigation, said the plaintiffs are likely to raise issues with the science used to determine the cost-benefit analysis of PFAS limits in drinking water.The American Water Works Association and the Association of Metropolitan Water Boards released a report in 2023 that estimated, based on a study conducted by consulting firm Black & Veatch, that the costs of complying with drinking water standards would be nearly triple the $1.5 billion per year cited by the EPA.
Eric Olson, senior strategic director for health at the Natural Resources Defense Council (NRDC), said: He is part of a coalition of groups intervening in the cases before both appeals courts, saying the water groups’ analysis “is not credible and should be rejected.” “The costs of compliance are entirely reasonable given how great the risks of cancer and other health problems are from PFAS chemicals. EPA has conducted a conservative analysis of the costs and benefits. In fact, EPA has chosen not to quantify or monetize the benefits, which are in fact enormous.”
Whatever the Washington DC court ultimately rules, “I have no doubt [the legality of the drinking water standard] “At some point it will be brought up to the Supreme Court level,” Gardella said in an interview.
Since 2017, Chemours has been under a consent order with the North Carolina Department of Environmental Quality to reduce leaks of PFAS into air, water and soil. The company makes polymers using hexafluoropropylene oxide dimer acid and its ammonium salts (collectively known as GenX) at its facility near the Cape Fear River in Fayetteville, North Carolina. Traces of the chemicals have been found in surface water, groundwater, stormwater and drinking water, and the EPA has identified the manufacturer as a potential source.
“Chemours resisted this health advisory level because of the same motive behind all of their actions: money,” Dana Sargent, executive director of Cape Fear River Watch, a group that advocates for residents affected by water pollution from the Chemours plant, said in a statement. [judges] We reject Chemours’ unjustified claims.”
Chemours argues that the Philadelphia court’s decision was based solely on procedural grounds. “We look forward to the D.C. Circuit considering the merits of our claims in the pending patent infringement litigation,” the company said in a statement. [regulation]The company added that it “uses similar analyses that are not scientifically based.”
The Philadelphia court’s decision means the EPA “can continue to play its important role in informing the public about potential health risks from unregulated chemicals in drinking water,” said Sarah Tallman, a senior attorney at NRDC.
