By Lisa Sorg
NC Newsline
This story was originally published by NC Newsline.
Chemours, the company responsible for polluting the drinking water of 800,000 people in the Lower Cape Fear River Basin with GenX, is asking a court to negate the EPA’s health advisory for the toxic chemical.
The Third Circuit Court of Appeals, based in Philadelphia, heard arguments last week. There is not a timetable for a decision.
A ruling for Chemours could save the company hundreds of millions of dollars because it would not have to provide alternate water supplies to households whose private wells contain GenX between 10 parts per trillion and 140 ppt.
Multiple independent scientific studies have shown GenX can harm the liver, kidneys, immune and reproductive systems, and has an association with cancer. However, Chemours has long denied that GenX is harmful or toxic, based on internal studies, or those the company has paid for.
In June 2022, the EPA revised the health advisory level for GenX at 10 ppt in public drinking water supplies from 140 ppt, finding that the chemical is more toxic than previously known.
At the time, the N.C. Department of Health and Human Services also voluntarily lowered its advisory to match EPA guidance.
Health advisory levels are not legally unenforceable, but intended to provide guidance to states and municipalities; state and local governments are not required to follow it. The EPA has issued 200 such advisories, according to court documents.
“What states decide to do with that advice,” doesn’t equate to the level being legally binding, the EPA attorneys told the court.
The agency has yet to regulate GenX or any type of PFAS, short for per-and polyfluoroalkyl substances in drinking water, although it’s expected to this year.
Chemours had criticized the EPA’s underlying science for the new levels as “riddled with errors, gaps and contradictions.”
But the EPA countered before the court that Chemours “submitted raw data with no explanation of how it had been collected … it was not peer-reviewed.”
In written court documents, the EPA implied the court’s ruling could set a precedent for future health advisory levels of other unregulated chemicals: “Chemours attacks not only the June 2022 advisory but the entire health advisory enterprise.”
The EPA’s revised GenX advisory was intended for public utilities and private drinking water wells owners to guide their decisions. (If the advisory were to become a final rule, the EPA does not regulate private wells.)
Attorneys for Chemours told the appellate court there is evidence that “third parties are reacting to the health advisory level. It has immediate practical consequences.”
While several states have adopted health advisory levels for GenX, none so far regulate it in drinking water.
However, North Carolina is a special case because of the widespread GenX contamination of private wells from the company’s Fayetteville Works plant. Under a 2019 voluntary Consent Order among Chemours, N.C. Department of Environmental Quality and Cape Fear River Watch, Chemours is required to provide alternate water supplies to households “with GenX exceeding 140 ppt” – the recommendation at the time – “or any applicable health advisory, whichever is lower.”
At least 1,545 more households are eligible for alternate water supplies under the new advisory, according to Chemours. The type of alternate supply — whole house filtration, for example –depends on the level of GenX in the water.
As more GenX is detected — as far as 25 miles from Chemours — an additional 14,100 additional residences may now qualify for sampling, according to DEQ.
The cost to Chemours to provide alternative water supplies to 1,545 more well owners would likely exceed $200 million, based on the terms of a 2019 consent order between Chemours, DEQ and Cape Fear River Watch. As part of that agreement, Chemours pays a maximum of $75,000 per household for installation and maintenance. For homes connected to a public system, the company must pay up to $75 per month for water bills for 20 years.
Chemours is arguing that the EPA did not conduct a cost analysis nor publish the new health advisory level for public comment. However, the EPA told the court that these actions are not legally required when issuing a health advisory level.
Several residents of the Lower Cape Fear River Basin and environmental groups — Cape Fear River Watch, Center for Environmental Health, Clean Cape Fear, Democracy Green, Natural Resources Defense Council, North Carolina Black Alliance, Toxic Free North Carolina, Dr. Kyle Horton, Lacey Brown, Harper Peterson, Michael Watters and Debra Stewart –– also filed comments with the court supporting the EPA’s position.
