Federal Appeals Court rejects lawsuit against EPA over PFAS testing

The 4th US Circuit Court of Appeals has rejected four environmental groups’ lawsuit against the US Environmental Protection Agency over PFAS testing. The groups had argued that the federal agency had effectively denied a petition to test certain chemicals at a Chemours plant south of Fayetteville.

The split 2-1 ruling Monday affirms a decision from US District Judge Richard Myers favoring the EPA.

“This litigation concerns the Toxic Substances Control Act (the ‘TSCA’), which allows citizens to petition the Administrator of the Environmental Protection Agency (the ‘EPA’) to initiate a proceeding for the issuance of a rule or order requiring the testing of certain chemical substances,” wrote Appeals Court Judge Steven Agee. “If the EPA denies that petition, the petitioner is entitled to a de novo review by a district court. If, however, the EPA grants the petition, a district court lacks jurisdiction to review the petition.”

The Center for Environmental Health, Cape Fear River Watch, Clean Cape Fear, and Toxic Free NC petitioned the EPA to require testing of 54 PFAS chemicals “likely prevalent in their community,” according to the 4th Circuit’s majority opinion. “The EPA granted that petition, agreeing to require testing on PFAS as a class through its own testing protocol. Petitioners sought judicial review of the EPA’s decision, contending it was in effect a denial of their petition.”

“Petitioners assert that the PFAS from Chemours’ plant pollute the Cape Fear River, which flows to the City of Wilmington, North Carolina, where over 300,000 residents use it for drinking water,” Agree wrote. “Various PFAS linked to the Chemours plant have been identified in private wells, wastewater, stormwater, sediment, groundwater, soil, and local produce in the Cape Fear watershed. Some PFAS have even been detected in the blood of the general population.”

“Concerned about the effects that PFAS could be having on their community, Petitioners filed a § 2620 petition, requesting that the EPA issue a § 2603 rule or order requiring Chemours to conduct testing on fifty-four PFAS manufactured at its facility,” Agee noted.

“Prior to granting the petition, the EPA, on its own initiative, had developed a National PFAS Testing Strategy in order to ‘deepen understanding of the impacts of PFAS, including potential hazards to human health and the environment,’” Agee wrote.

“The EPA relied on this developed protocol when it issued a decision granting Petitioners’ petition,” the 4th Circuit opinion explained.

“[T]he EPA did not adopt Petitioners’ proposed testing strategy because … it instead decided to use its National PFAS Testing Strategy to address Petitioners’ request,” Agree wrote. “The EPA noted that Petitioners’ intent ‘is to develop information that would enable the Cape Fear River watershed communities to better understand the potential effects to their health from PFAS exposures.’ It further explained that if the EPA attempted to research each of the PFAS ‘one at a time, it will be impossible for [the] EPA, states, or communities to expeditiously understand, let alone address, the risks these substances may pose to human health and the environment.’”

Instead, the first phase of the EPA’s plan would cover 30 of the 54 listed chemicals. Additional testing could cover nine more chemicals in the petition.

“The other fifteen of the chemicals that Petitioners identified, however, ‘do not fit the definition of PFAS used in developing the Testing Strategy,’ because ‘there is robust data on some of them available to the [EPA].’ Nevertheless, the EPA noted that it ‘is conducting more in-depth analyses of the existing data, which will inform later phases of testing,’” Agee wrote.

The 4th Circuit majority agreed with Myers that the EPA’s plan did not amount to a rejection of the environmental groups’ petition.

“Although Petitioners would prefer that the EPA localize their testing mandates to Petitioners’ community, the TSCA does not promise that an agency will limit testing to a particular geographic area or a particular facility,” Agee wrote. “It simply ensures that when a petitioner identifies a data gap regarding a potentially harmful chemical, a manufacturer of that chemical will develop the required information about it.”

“The EPA is doing that here and is actually gathering information at a much faster rate than would likely be the case if it mandated testing of Petitioners’ specific PFAS individually,” Agee added.

“At bottom, Petitioners are getting what they requested — companies that manufacture potentially harmful PFAS, like Chemours, are being required to develop information on the human and environmental effects of those substances,” Agee wrote. “Petitioners will receive information on the health effects of PFAS, and this information will help them, the public, and the EPA protect the health of communities and the environment.”

Senior US District Judge John Gibney of Virginia joined Agee’s decision. Appeals Court Judge James Wynn agreed that the EPA “properly granted Petitioners’ petition” for 39 of the 54 chemicals listed.

“But the EPA’s decision not to include within that group fifteen of the chemicals set forth in the petition rendered its decision a partial denial subject to de novo review,” Wynn wrote. “Because the EPA effectively denied the petition as to those fifteen chemicals, I must respectfully dissent as to the portion of the majority opinion that reaches the contrary conclusion.”

More than 6,500 substances are listed as PFAS, or “forever” chemicals that do not break down or degrade over time, the 4th Circuit opinion noted. The materials are used in firefighting foams, coatings for clothing and upholstery, manufacturing other chemicals, and fast-food wrappers and boxes.