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What's next for Chemours' legal fight with the EPA over GenX advisory levels?

EPA Administrator Michael Regan says the Supreme Court's ruling is a setback for the agency.
Joshua Roberts
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Getty Images
EPA Administrator Michael Regan used to be in charge of North Carolina's DEQ, and has fought against Chemours for years.

Last week, Chemours announced it is suing the Environmental Protection Agency over its GenX health advisory. But what will that mean?

Chemours filed a petition in the U.S. Court of Appeals for the Third Circuit last week, in a region that covers Delaware, where the company is based. The petition claims the EPA overstepped with its health advisory for GenX in setting the limit at 10 parts per trillion.

But the health advisory will still move forward in the short term unless the court decides to put it on hold. Attorney Geoff Gisler, from the Southern Environmental Law Center, expects the Chemours petition to fail.

“I think EPA was on solid ground when they issued the health advisory level. I think it will stand up,” he said.

Chemours' petition hinges on a few arguments, but the main one is that the EPA based its most recent health advisory on a toxicity assessment from last year, which found the chemical to be much more dangerous than a prior assessment in 2018. Chemours says that’s unreasonable, but Gisler says otherwise.

"If you compare what we knew about GenX and other PFAS in 2018 to what we know now, it's, it's entirely different," Gisler said. "There's been so much research over the last four years that the landscape really has shifted dramatically.”

The new health advisories the EPA announced will likely be very costly to Chemours in the coming years because of GenX in particular. The company didn’t dispute the advisories surrounding chemicals like PFOA and PFOS, which are no longer being manufactured. But GenX is a key element in their current production and technology. Actually cleaning up their pollution would be quite expensive — making up for contamination that's already out in the world will be costly as well.

“DEQ has already indicated that with the lower health advisory, Chemours is required to provide a higher level of filtration to more homeowners to more well owners,” Gisler said. Under Cape Fear River Watch and DEQ's consent order with Chemours, the company must pay for safe drinking water for the owners of drinking water wells in the Cape Fear Region. Before the EPA's health advisories, that only applied to wells with 140 parts per trillion of GenX or more (with other requirements for other PFAS). But now, DEQ has signaled the level will be lowered to 10 PPT, which means many more wells may qualify.

A different approach

But Gisler thinks the EPA and North Carolina Department of Environmental Quality are still taking the wrong approach with these kinds of 'piecemeal' health advisories, particularly since there are thousands of known PFAS.

“As those standards are set, they're gonna take years to develop. They will be scientific, they will have a strong scientific basis, and they are likely to be challenged by industry," he said.

Instead, he’d like to see enforcement through the existing permitting system.

"Looking at what the technology can do, and basing the limits for Chemours or other PFAS dischargers, on what the technology is capable of doing," he explained. "This is a perfect example. The GenX health Advisory is 10 ppt, which is a lot better than 140 ppt. But it's not as good as none. And that’s what the technology can do at Chemours.”

That’s exactly what many activists and stakeholders demanded at a recent DEQ public hearing on an industrial wastewater permit for Chemours. Stopping any GenX from leaving the facility would be as simple as changing out the granular activated carbon filters more often. Clean Cape Fear Executive Director Emily Donovan said as much at that June 22 hearing.

“Do not allow Chemours to release any PFAS, and I defined PFAS as one fully fluorinated carbon, into the river we use as our primary source of drinking water," Donovan said. "This is the same river that runs directly into the beaches, our children and pets play in, and that our commercial fishing industry relies on as a source of food and livelihood.”

Gisler said that strategy should work. It’s the EPA’s right under the Clean Water Act. Technology has progressed to the point where none of this pollution need escape into the river. That's what Gisler wants to see.

“Because the technology is so good, and it's getting better all the time, we can get to that point of not having any PFAS going into our rivers, which is really what the goal of the Clean Water Act is. We were supposed to have eliminated discharges by ‘85, what was that, 37 years ago?” Gisler said. "It's frustrating, because we know that these chemicals harm people."

Editor's note: The EPA has not yet responded to WHQR’s request for comment submitted after last week's filing by Chemours.

Kelly Kenoyer is an Oregonian transplant new to the East Coast. She attended University of Oregon’s School of Journalism as an undergraduate, and later received a Master’s in Journalism from University of Missouri- Columbia. Contact her on Twitter @Kelly_Kenoyer or by email: KKenoyer@whqr.org.