On July 13, 2022, The Chemours Company FC, LLC (“Chemours”) filed a Petition for Review with the Third Circuit U.S. Court of Appeals challenging the United States Environmental Protection Agency (“EPA”)’s Health Advisory Level (“HAL”) of 10 ppt for HFPO Dimer Acid, a.k.a. GenX, alleging that the HAL is based on a “deeply flawed, scientifically unsound toxicity assessment.”  As noted in our previous article, EPA announced on June 15, 2022 its issuance of the GenX HAL, along with a HAL for three other PFAS.

Chemours has challenged the GenX HAL on a number of bases, including the assertion that the GenX toxicity assessment is flawed because it assumed that drinking water accounts for only 20% of a person’s exposure to GenX chemicals in contradiction of a vast amount of data in EPA’s possession.  Chemours also argues that due to EPA’s assumption that 80% of exposure to GenX chemicals is from sources other than drinking water, EPA does not have the authority under the Safe Drinking Water Act to issue the HAL.  Chemours further argues that Congress failed to provide EPA with any guidance or constraints regarding health advisories, and as a result, the Safe Drinking Water Act’s delegation of authority to EPA to issue health advisories violates the constitutional nondelegation doctrine and is unconstitutional.  In making this argument, Chemours may be encouraged by the outcome in the recent Supreme Court case West Virginia v. EPA, No. 20-1530 (June 30, 2022). To overcome the obstacle that a HAL may not constitute a final agency action that can be appealed, Chemours asserts that the HALs are regulatory in nature because they have significant legal consequences in numerous contexts including use by EPA, and according to Chemours, mandatory adoption in over 20 states.  Stay tuned for further updates once the briefing occurs in this matter.