Chemours' challenge to EPA PFAS advisory tossed by U.S. appeals court

The Chemours

23/07/2024 22:40

By Brendan Pierson
       July 23 (Reuters) - A federal appeals court on Tuesday
dismissed a lawsuit by chemical manufacturer Chemours  CC.N 
against the Biden administration challenging a drinking water
advisory for toxic "forever chemicals."
    Circuit Judge Arianna Freeman wrote for a unanimous 3rd U.S.
Circuit Court of Appeals panel that the advisory, issued in 2022
by the U.S. Environmental Protection Agency, could be not be
challenged in court because it was not a final agency action.
Instead, she wrote, it was intended to "help communities make
informed decisions."
    The advisory targeted a chemical used by Chemours called 
HFPO-DA, which belongs to a class of toxic chemicals known as
per- and polyfluoroalkyl substances, or PFAS. The EPA warned
that it posed health risks in drinking water even at levels so
low they are not detectable.
    The advisory was meant to provide guidance while the
administration worked on formal rules regulating PFAS in
drinking water.
    Those rules were unveiled in April, and are expected to
require between 6% and 10% of the 66,000 public drinking water
systems in the United States to take action to reduce
contamination, according to the EPA. Companies including
Chemours and industry groups last month sued to block the rule.
    Chemours had argued that the advisory could lead to action
by regulators, including the EPA itself or state regulators. For
example, it said that Utah incorporates such advisories into its
regulation of waste in water.
    The EPA countered that the advisory was nonbinding and could
not be challenged as an agency action.
    "Repercussions that result do not convert the health
advisory into a final action," Freeman wrote, agreeing with the
agency. "And although the health advisory may persuade some
decisionmakers to act, that does not make it a final agency
action, either."
    Freeman, who was appointed by Democratic President Joe
Biden, was joined by fellow Biden appointee Circuit Judge Luis
Felipe Restrepo and by Chief Circuit Judge Michael Chagares, an
appointee of Republican George W. Bush.
    Chemours in a statement said it was disappointed by the
ruling, but looked forward to having its challenge to the EPA's
PFAS rules heard by a Washington, D.C., appeals court.
    The EPA did not immediately respond to requests for comment.
    PFAS have been used for decades in firefighting foam, and a
wide range of industrial products and household products such as
non-stick cookware.
    Scientists have linked exposure to some kinds of PFAS to
cancers, liver damage, low birth weight and other health
problems. They are called "forever chemicals" because they
degrade very slowly in the natural environment, potentially
persisting for hundreds or thousands of years.
    The chemical industry has said the substances don't pose
uniform potential risks to health, and are important for diverse
industries in the economy including fuel cell development.
    Chemours was part of a $1.19 billion settlement last year
with public water systems over PFAS contamination, along with
other chemical companies. 3M  MMM.N  separately reached a $10.3
billion deal.
    The case is The Chemours Company FC LLC v. U.S.
Environmental Protection Agency, 3rd U.S. Circuit Court of
Appeals, No. 22-2287.
    For Chemours: Allon Kedem of Arnold & Porter Kaye Scholer
    For the EPA: Kimere Kimball and Andrew Knudsen of the U.S.
Department of Justice
    
    Read more:
    Environmental groups get green light to join Chemours fight
over PFAS advisories
    U.S. issues new warnings on 'forever chemicals' in drinking
water
    US sets first standard to curb 'forever chemicals' from
drinking water
    Chemical makers settle PFAS-related claims for $1.19 billion
    3M reaches tentative $10.3 billion deal over US 'forever
chemicals' claims
    US industry groups sue to block 'forever chemical'
drinking-water rule

 (Reporting By Brendan Pierson in New York)
 ((Brendan.Pierson@thomsonreuters.com;))