As previously reported, 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.   A three-judge panel of the Third Circuit denied EPA’s motion to dismiss in a one-page order dated December 6, 2022. 

Last month Chemours filed a proof brief reiterating its prior position that the EPA’s drinking water Health Advisory violated rulemaking requirements by failing to submit to the notice-and-comment requirement under the Administrative Procedure Act (“APA”).  Chemours also argued that the Health Advisory is substantively unlawful because its actions were arbitrary and capricious by relying on data regarding a toxicological effect that has no relevance to humans and by failing to attest to the economic and societal costs of the Health Advisory. 

The Chamber of Commerce of the United States of America (“the Chamber”) submitted an amicus curiae brief supporting Chemours’s petition.  The Chamber argued in its brief that the Health Advisory is an invalid legislative rule because the EPA did not comply with the APA’s notice-and-comment procedures.  The Chamber also argued that the health advisory is a final agency action because it affects the rights of all businesses, “including many Chamber members, whose products have been or may be subject of such Safe Drinking Water Act (“SDWA”) health advisories.”  Specifically, the Chamber challenged EPA’s claim that the Health Advisory does not have the force of law and does not affect the rights and obligations of any party by pointing to the Agency’s authority under Section 1431, 42 U.S.C. §300i.  The Chamber noted that under this authority the Agency may order any person who causes or contributes to contamination to provide alternative sources of drinking water and the authority to subject such persons to civil penalties of up to $15,000 per day.  The Chamber also argued that many states incorporate EPA’s Health Advisories into their drinking water regulations. 

Note that The Third Circuit, by separate order dated December 6, 2023, granted a motion to intervene by Cape Fear River Watch, Center for Environmental Health, Clean Cape Fear, Democracy Green, Natural Resources Defense Council, North Carolina Black Alliance, Toxic Free North Carolina, Dr. Kyle Horton, Lacey Brown, Harper Peterson, Michael Waters, and Debra Stewart. Accordingly, the briefing schedule will follow with Respondents’ Proof Brief due June 26, 2023, Intervenors’ Proof Brief due June 30, 2023, Petitioner’s Proof Reply Brief July 21, 2023, and Final Briefs from All Parties August 11, 2023.

The case is The Chemours Co. FC LLC v. U.S. Environmental Protection Agency et al., case number 22-2287, in the U.S. Court of Appeals for the Third Circuit.