Split Decision Favors EPA in Dispute Over Forever Chemicals Testing

In a 2-1 ruling, the 4th US Circuit Court of Appeals has rejected a lawsuit filed by four environmental groups against the US Environmental Protection Agency (EPA) concerning the testing of PFAS, or “forever” chemicals, at a Chemours facility south of Fayetteville, North Carolina. The decision affirms US District Judge Richard Myers’ earlier ruling in favor of the EPA. The lawsuit, brought by the Center for Environmental Health, Cape Fear River Watch, Clean Cape Fear, and Toxic Free NC, argued that the EPA had effectively denied their petition to require testing of 54 PFAS chemicals at the Chemours plant, which they claim have polluted the Cape Fear River, a source of drinking water for over 300,000 residents in Wilmington, North Carolina.

5 Key Points

  • The environmental groups petitioned the EPA to require testing of 54 PFAS chemicals at the Chemours plant.
  • The EPA granted the petition but opted to use its own National PFAS Testing Strategy instead of the proposed testing strategy.
  • The EPA’s plan would cover 39 of the 54 listed chemicals in the first phase and additional testing.
  • The 4th Circuit majority agreed that the EPA’s plan did not amount to rejecting the petition.
  • Judge James Wynn dissented, arguing that the EPA’s decision not to include 15 chemicals rendered it a partial denial.

EPA’s National PFAS Testing Strategy

The EPA had developed a National PFAS Testing Strategy before granting the environmental groups’ petition. This strategy aimed to deepen the understanding of the impacts of PFAS on human health and the environment. When issuing its decision, the EPA relied on this protocol, explaining that attempting to research each PFAS chemical individually would make it impossible to understand and address the risks they may pose expeditiously. The first phase of the EPA’s plan would cover 30 of the 54 listed chemicals, with the possibility of additional testing covering nine more chemicals mentioned in the petition.

Majority Opinion and Dissent

The 4th Circuit majority, consisting of Appeals Court Judge Steven Agee and Senior US District Judge John Gibney, agreed with Judge Myers that the EPA’s plan did not constitute a rejection of the environmental groups’ petition. Judge Agee noted that although the petitioners would prefer localized testing, the Toxic Substances Control Act (TSCA) does not promise that an agency will limit testing to a particular geographic area or facility. Instead, it ensures that the manufacturer must develop the necessary information when a petitioner identifies a data gap regarding a potentially harmful chemical.

However, Appeals Court Judge James Wynn dissented partly, arguing that the EPA’s decision not to include 15 chemicals listed in the petition rendered its decision a partial denial subject to de novo review. Wynn stated that because the EPA effectively denied the petition for those 15 chemicals, he respectfully dissented from the portion of the majority opinion that concluded otherwise.

Implications for PFAS Testing and Regulation

The 4th Circuit’s decision has significant implications for the testing and regulating PFAS chemicals, which have been linked to various health concerns and environmental contamination. While the environmental groups’ lawsuit aimed to compel more localized testing at the Chemours plant, the EPA’s broader National PFAS Testing Strategy seeks to address the issue on a larger scale. The ruling highlights the challenges communities and environmental advocates face in holding manufacturers accountable for PFAS pollution and ensuring comprehensive testing and regulation of these persistent chemicals.