The outcome of a Chemours Co. lawsuit challenging a PFAS health advisory the EPA set for drinking water could affect cleanups, public health, and regulatory processes, attorneys said in recent interviews.
The lawsuit focuses on a particular PFAS used to make a type of chemical, perfluoroalkoxy alkanes (PFA), important to the semiconductor industry. PFA is critical to the Chips Act’s goal of building domestic sources of materials for chip producers, according to technical analyses of materials semiconductor manufacturers use and other reporting.
Chemours has asked the US Court of Appeals for the Third Circuit to vacate a 10 parts per trillion (10 ppt) health advisory that the EPA set last year for the PFAS, hexafluoropropylene oxide (HFPO) dimer acid, and its ammonium salt.
The Environmental Protection Agency’s response is due June 26, but the agency has already told the court the case should be dismissed because health advisories are not regulations, not final actions, and not subject to judicial review.
HFPO dimer acid is one of thousands of per- and polyfluoroalkyl substances (PFAS). The EPA and regulators in many countries are focusing on the chemicals because it requires extraordinary means to break them down after release into the environment. The PFAS of concern build up in plants, animals, and people, and are associated with increased risk of cancer along with kidney and other problems.
Contaminated Site Cleanups
The HFPO case is of interest to parties other than Chemours for many reasons, including because health advisories can translate into state restrictions, said Steven T. Miano, a shareholder and environmental attorney with Hangley Aronchick Segal Pudlin & Schiller.
Twenty-one states automatically incorporate the EPA’s health advisories into their substantive regulatory standards, where they can be used to drive remediation levels at contaminated sites, the US Chamber of Commerce told the court in an April 26 amicus brief filed in support of Chemours.
The 10 ppt threshold is very low, Miano said. “Depending on what you read, that’s lower than what can be detected in a lab reliably. It’s essentially saying there’s no amount that’s safe.”
Chemours is the only company that reported recent production of HFPO to the EPA as required by the Chemical Data Reporting rule. The company uses HFPO to make fluoropolymers, which are widely used in many industrial sectors. HFPO and related chemicals are often called “GenX,” but that term actually is a trade name for the technology Chemours uses to produce fluoropolymers.
Other companies that make fluoropolymers also can produce HFPO as a byproduct, according to the EPA.
3M, which has produced fluoropolymers but pledged to stop doing so by 2025, agreed last year to sample and provide treatment for PFAS after 19 of those chemicals, including HFPO, were detected in drinking water near its Cordova, Ill., facility. The release constituted what the EPA called an imminent and substantial endangerment.
Companies making or using HFPO released 100 pounds or more in 2020 from five facilities in five states: North Carolina, New Jersey, South Carolina, Texas, and West Virginia, according to the EPA.
The chemical has been detected in drinking water in 16 states: Alabama, California, Colorado, Illinois, Kentucky, Maine, Maryland, Massachusetts, Michigan, New Hampshire, North Carolina, North Dakota, Ohio, Pennsylvania, South Carolina, and Vermont, the agency said. Its concentration wasn’t available due to limitations of the state data, the EPA said.
Car, airplane, cellphone, hydrogen fuel cell, medical equipment, and semiconductor manufacturers are among those that use a variety of fluoropolymers to protect their products’ equipment and help them perform in certain ways.
One type of fluoropolymer, PFA, is particularly good at preventing corrosive chemicals from damaging plastic tubes and other parts semiconductor manufacturers use to help keep their chips in the ultrapure environment needed to make sure a tiny impurity doesn’t affect their performance.
PFA is among the many supply chain “chokepoints” the semiconductor industry faces as the US and other countries try to boost domestic supplies of semiconductor chips, the Japan-based financial newspaper Nikkei Asia reported last year in an analysis later republished by the Financial Times.
US-based Chemours and Japan-based Daikin Industries are the only producers of PFA, which requires extensive knowledge to process, and the companies aren’t expected to face any competition in the space, according to the report.
“We’re the only PFA supplier in the US,” Chemours’ CEO Mark Newman told investors during an April earnings call. “So, if there’s a US onshoring of chips, you know, we’re key to that whole activity,” he said describing the company’s efforts to boost PFA production. These efforts include the company asking North Carolina’s Department of Environmental Quality to allow expanded HFPO and other chemical production at its Fayetteville, N.C., site.
Opening the Litigation Door
Beyond HFPO, the lawsuit is interesting because there’s not a lot of case law about drinking water health advisories, Miano said.
The advisories are “another example of regulation by guidance” that should be subject to public notice and comment, which the agency doesn’t provide, said Andy Varcoe, deputy chief counsel of the Chamber’s Litigation Center.
“This case could have a troubling nationwide impact,” said Erik D. Olson, senior strategic director at Natural Resources Defense Council, which intervened in the case.
The EPA bases its health advisories on its analysis of the risks posed by unregulated contaminants, such as HFPO and other “forever chemicals,” he said. The advisories share that information with the public.
“If Chemours’ lawsuit succeeds, it could open all health advisories to the threat of lawsuits,” said Olson. “That would make it harder for [the] EPA to issue health advisories, leaving people in the dark about the threats their drinking water may pose.”
Overturning the EPA’s health advisory would directly affect residents around Chemours factory in Fayetteville, said Bob Sussman, an attorney in private practice who represents a coalition of local residents and community groups that also have intervened in the lawsuit, because its outcome impacts them. They’re scheduled to file their brief by June 30. The advisory triggered certain protections in a state consent order under which Chemours operates, he said.
Offering notice and public comment for health advisories would add time and isn’t really necessary, said Sussman, who served as senior policy counsel to the EPA administrator during the Obama administration. The toxicity assessments on which the advisories are based go through extensive notice and public comment, he said.
But Chemours’ brief disputes that science and what it calls the EPA’s “end run” around the Administrative Procedure Act’s notice and comment requirements.
“[The] EPA disregarded both the best available science and their own legal authority by issuing a health advisory that is 27 times lower than they had previously proposed,” said Brian Israel, a partner who co-leads the Environmental, Social and Corporate Governance group at Arnold & Porter Kaye Scholer.
It did so “while ignoring published literature and data, failing to provide the public with an opportunity to comment, and incorporating assumptions that their own peer reviewer said are extreme and excessive,” he said.
The case is Chemours Co. v EPA, 3d Cir., No. 22-02287, 4/28/23.
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