The Chemours Company is suing the Environmental Protection Agency for its recent health advisory for GenX, one of the contaminants discharged for years into the Cape Fear River from the company’s plant in Fayetteville.
Chemours is challenging the EPA’s review of the agency’s health advisory for hexafluoropropylene oxide dime acid, or HFPO-DA (GenX), arguing the agency failed to use the best available science when making its determination.
“Nationally recognized toxicologists and other leading scientific experts across a range of disciplines have evaluated the EPA’s underlying analysis and concluded that it is fundamentally flawed,” according to a Chemours release. “EPA’s own peer reviewer called aspects of EPA’s toxicity assessment (which serves as the basis for the health advisory) ‘extreme’ and ‘excessive.’ The agency disregarded relevant data and incorporated grossly incorrect and overstated exposure assumptions in devising the health advisory. The EPA’s failure to use the best-available-science and follow its own standards are contrary to this administration’s commitment to scientific integrity, and we believe unlawful.”
The suit filed Wednesday in the U.S. Court of Appeals for the 3rd Circuit in Philadelphia specifically names EPA Administrator Michael Regan, who is also former secretary of the North Carolina Department of Environmental Quality.
Chemours warned it might take legal action against the EPA after the agency’s assistant administrator for water, Radhika Fox, announced the final health advisory June 15.
Fox made the announcement at the third National PFAS Conference held in downtown Wilmington, a city and surrounding region thrust into the national spotlight five years ago when the news broke that Chemours’ Fayetteville Works Facility had for decades been discharging per- and polyfluoroalkyl substances into the Cape Fear River, air and ground.
The EPA’s final health advisory for GenX is 10 parts per trillion, or ppt and, for perfluorobutane sulfonic acid, or PFBS, at 2,000 ppt. PFBS has not been found in significant concentrations in samples in North Carolina, according to DEQ.
The agency also issued updated interim health advisories for perfluorooctanoic acid, or PFOA, and perfluorooctane sulfonic acid, or PFOS.
GenX was created to replace PFOA, which was voluntarily phased out of production more than 10 years ago in the U.S.
Chemours states in its news release that HFPO-DA is not a commercial product and does not pose human health or environmental risks “when used for its intended purpose.”
Health studies of animals that ingested GenX show health effects in the kidneys, blood, immune system, liver and developing fetuses, according to the EPA’s toxicity assessment.
Chemours argues that the GenX toxicity assessment issued October 2021 was “materially different” from a draft assessment published in November 2018 and that the EPA did not provide public notice or allow for public comment on the new assessment.
“Upon review of the October 2021 Toxicity Assessment, Chemours and external experts identified numerous material scientific flaws, including its failure to incorporate available, highly relevant peer-reviewed studies and that it significantly overstates the potential for risk associated with HFPO-DA,” according to the release.
The EPA did not respond to an email request for comment Wednesday.
EPA Deputy Assistant Administrator Benita Best-Wong defended the GenX toxicity assessment in a letter to a law firm representing six North Carolina health and environmental groups, stating the assessment “was subject to two rigorous independent peer reviews by scientists who were screened for conflicts of interest in 2018 and 2021.”
Best-Wong went on to write that the agency asked the National Institute of Environmental Health Sciences National Toxicology Program to conduct an independent review of the liver histopathology slides from two studies.
The agency published detailed responses to comments from both peer reviews and the assessment was put out for public review and comment for 60 days, she wrote.
That letter was in response to the groups’ call for the EPA to order Chemours to conduct health studies on 54 PFAS. Those groups, including Cape Fear River Watch, Center for Environmental Health, Clean Cape Fear, Democracy Green, the NC Black Alliance and Toxic Free NC, filed a lawsuit against the EPA for failing to require Chemours to conduct the studies.
The EPA’s health advisory for GenX replaces the state’s 2018 provisional drinking water health goal of 140 ppt.
A consent order between DEQ, Cape Fear River Watch and Chemours requires the company to provide whole house filtration for households that rely on private water wells where GenX concentrations are above the health advisory.
“We expect Chemours to meet their obligations under the Consent Order and to the communities impacted by the PFAS contamination,” Sharon Martin, DEQ deputy secretary for public affairs, said in an email Wednesday.
Cape Fear River Watch Executive Director Dana Sargent said in a telephone interview she was “shaken” by the lawsuit.
“This is going to be seriously infuriating for the community to hear this news and to still be looking at commercials and this nonsense saying (Chemours) are good neighbors,” she said. “I think Chemours needs to recognize that they can’t continue to claim that they’re good neighbors while suing the nation’s regulatory agency based on their assessment of the GenX toxicity level, which was done under strict calculations based on available science on the health impacts of GenX. The science is science.”