EPA’s ‘Sham’ PFAS Claim Shouldn’t Derail Legal Case, Court Told

The EPA can’t avoid judicial oversight by claiming it granted North Carolinians’ petition to require Chemours to test PFAS when its actions show it denied the request “in all but name,” a coalition of six groups told a federal court Monday.

Six environmental and community groups objected on Monday to a motion the Environmental Protection Agency filed on June 23 asking the US District Court Eastern District of North Carolina to dismiss the coalition’s lawsuit that seeks to compel the Chemours Co. to test the health and environmental effects of 54 per- and polyfluoroalkyl substances, or PFAS.

The coalition originally petitioned the EPA in 2020 to order Chemours to test 54 PFAS the groups say its Fayetteville, N.C., factory released into the environment.

The groups turned to federal court after the agency originally rejected their request and later said it granted the petition, but actually didn’t, according to the coalition led by the Center for Environmental Health.

“The agency could avoid any judicial accountability simply by declaring that it had ‘granted’ a citizens’ petition, even though (as here) it has initiated a sham “proceeding” that purports to address the petition but in fact does not grant the relief sought,” Robert M. Sussman, an attorney with Sussman & Associates, told the court on behalf of the petitioners.

Supreme and lower court decisions recognize that they aren’t bound by the labels that agencies attach to their decisions, but must look at the decisions’ contents to determine their actual effect, the coalition’s memorandum said.

‘Broad’ Judicial Standard

“EPA’s self-serving assertion that it ‘granted’ the petition would negate the unusually broad and independent role that Congress assigned to district courts under section 21 and block them from making a de novo determination of the merits of TSCA citizens’ petitions as the law requires. EPA’s rewriting of section 21 is not only contrary to Congressional intent, but would deny the citizens of the lower Cape Fear River basin the right to ask the Court to hold EPA accountable,” the coalition said.

The coalition filed its original petition to the EPA using Section 21 of the Toxic Substances Control Act. Challenges to EPA decisions under that section of TSCA are heard de novo, meaning the court assesses the evidence without deference to prior EPA findings.

The memorandum plaintiffs filed on Monday is the latest twist in their yearslong effort to get information they say they and their health providers need to understand the potential effects of years of PFAS exposure.

Chemours and its predecessor, E.I. du Pont de Nemours, discharged PFAS into the atmosphere and adjacent Cape Fear River. After some PFAS specifically linked by scientists to the Fayetteville, N.C., site began to be discovered in 2018, Chemours began to spend what it estimates will be than $400 million on emissions control technology and remediation.

The EPA, during former President Donald Trump’s administration, denied the coalition’s original petition, which asked the agency to order Chemours to conduct health and environmental tests.

The Biden administration reconsidered that denial, and its response is the subject of the ongoing district court case.

The EPA, in December 2021, said it would grant the plaintiffs’ request with information to be generated through a previously announced National PFAS Testing Strategy. That strategy would provide data relevant for 30 of the 54 chemicals and information that might apply to an additional nine of the 54 compounds, the agency said.

EPA Rejected Core Tests

The details of the EPA’s response, however, show that it declined to order tests on 47 of the 54 PFAS, and rejected the most important studies that the petition proposed, which would have examined health effects research on the Cape Fear River basin population that’s been exposed to PFAS released by Chemours and its predecessor, the coalition wrote in its objection to the EPA’s dismissal motion.

Chemours is not a party to the lawsuit, but it repeatedly has said several chemicals the groups want it to test have no known connection to the company’s Fayetteville facility. Others are byproducts and intermediaries—chemicals that exist temporarily as other compounds are produced—that occur at such small quantities that it would be difficult to produce the volumes required for testing, the company maintains.

As of July 14, the agency has ordered Chemours and other companies to test only one PFAS, 6:2 fluorotelomer sulfonamide betaine, and it’s not among the 54 that the petitioners say needs information.

The EPA’s June 23 dismissal motion acknowledges its December 2021 response to the coalition “did not commit to every aspect of the proposed testing program set forth in plaintiffs’ petition.”

“This, however, does not constitute a denial of the petition,” the agency said. TSCA “does not require a specific result of any administrative proceeding, much less the extensive testing program that plaintiffs proposed in their petition.”

Black, Brown Communities Suffering

“Testing one compound is not going to be adequate,” said Jovita Lee, program and policy director with the North Carolina Black Alliance, which is part of the coalition.

“Black and brown communities are literally suffering,” she said.

PFAS are the great equalizer, said Sanja Whittington, executive director of Democracy Green, an environmental justice group that’s part of the coalition. The chemicals are affecting people of all incomes and across the country, she said.

Health care providers need to know what they’re dealing with to offer the help exposed communities need, she said.

Neither the EPA’s failure to order the tests sought nor its recent dismissal motion has shaken the environmental justice communities Democracy Green represents, Whittington said. “In the EJ world that’s just par for the course.”

She recalled how a poor, rural, and overwhelmingly Black community in Afton, N.C., fighting truckloads of contaminated wastes gave birth 40 years ago to the environmental justice movement.

“We understand all too well that this is a fight that you’ve got to be in for the long run, because this is exactly what it is. It’s a fight,” Whittington said.

The case is Ctr. for Environmental Health v. EPA, E.D.N.C., No. 22-00073, 7/25/22.

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