Chemours Fails to Convince Appeals Court in Case Against the Environmental Protection Agency

(PortCityDaily, Peter Castagno) — Local environmentalists applauded an appeals court decision to reject Chemours’ lawsuit alleging the Environment Protection Agency acted unlawfully by issuing a drinking water health advisory for GenX.

Chemours sued the EPA shortly after the agency announced its lifetime health advisory level for GenX at 10 parts per trillion in June 2022.

Although EPA’s advisories are non-enforceable, Chemours argued the advisory was “extreme” and would serve as a “de-facto regulation” that states would use to inform tangible regulation. The U.S. Chamber of Commerce filed a brief in support of the chemical manufacturer.

The EPA countered its health advisories are supposed to serve as informational guidelines using the best available science to identify the concentration of contaminants that can cause adverse health effects.

The Third Circuit of Appeals dismissed the case Tuesday. It found no parties’ rights were infringed by the advisory and regulation is not determined by the agency’s health guidelines.

Environmentalist groups, including Cape Fear River Watch, Clean Cape Fear, the Natural Resources Defense Council, and the Center for Environmental Health, filed briefs as interveners in the case and celebrated the decision Tuesday.

“Through the years, our community has learned that when companies like Chemours are not actively hiding the science, they are usually attacking it,” Clean Cape Fear founder Emily Donovan said in a press release. “This is a win for public health and every resident harmed by GenX exposures. The court got it right this time.”

The EPA reached a voluntary agreement with DuPont to use GenX as a replacement for PFOA — a toxic PFAS compound recognized by the agency — two decades ago. The EPA later found GenX to be potentially even more toxic than its predecessor, after years of allowing DuPont and its spinoff company Chemours to disseminate GenX, in addition to at least 53 other PFAS substances, in the Cape Fear River.

“Chemours has claimed that this was a final action by the EPA, which could require them to clean up their mess,” Cape Fear River Watch executive director Dana Sargent told PCD. “And they’re claiming that’s not fair, which is so backwards, but it’s a legal argument. But this PFAS advisory is not a final action. It’s providing guidance to states to protect their citizens in the way that they see fit.”