Chemours Appeals EPA’s GenX Health Advisory Level | Fox Rothschild LLP

On July 13, 2022, The Chemours Firm FC, LLC (“Chemours”) filed a Petition for Assessment with the Third Circuit U.S. Court docket of Appeals difficult the US Environmental Safety Company (“EPA”)’s Well being Advisory Degree (“HAL”) of 10 ppt for HFPO Dimer Acid, a.okay.a. GenX, alleging that the HAL relies on a “deeply flawed, scientifically unsound toxicity evaluation.”  As famous in our previous article, EPA introduced on June 15, 2022 its issuance of the GenX HAL, together with a HAL for 3 different PFAS.

Chemours has challenged the GenX HAL on a lot of bases, together with the assertion that the GenX toxicity evaluation is flawed as a result of it assumed that consuming water accounts for under 20% of an individual’s publicity to GenX chemical substances in contradiction of an unlimited quantity of knowledge in EPA’s possession.  Chemours additionally argues that because of EPA’s assumption that 80% of publicity to GenX chemical substances is from sources aside from consuming water, EPA doesn’t have the authority below the Secure Consuming Water Act to situation the HAL.  Chemours additional argues that Congress failed to offer EPA with any steering or constraints concerning well being advisories, and consequently, the Secure Consuming Water Act’s delegation of authority to EPA to situation well being advisories violates the constitutional nondelegation doctrine and is unconstitutional.  In making this argument, Chemours could also be inspired by the result within the current Supreme Court docket case West Virginia v. EPA, No. 20-1530 (June 30, 2022). To beat the impediment {that a} HAL might not represent a closing company motion that may be appealed, Chemours asserts that the HALs are regulatory in nature as a result of they’ve vital authorized penalties in quite a few contexts together with use by EPA, and in keeping with Chemours, obligatory adoption in over 20 states.  Keep tuned for additional updates as soon as the briefing happens on this matter.

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