Chemours challenges the EPA GenX drinking water health advisory with a surprising argument: the Nondelegation Doctrine

Read the full story at JD Supra.

The Environmental Protection Agency’s new drinking water health advisories for PFAS, released on June 15, 2022, included an advisory level of 10 parts per trillion (ppt) for hexafluoropropylene oxide dimer acid and its ammonium salt, collectively known as GenX. On July 14, 2022, Chemours, which manufactures GenX, petitioned the United States Court of Appeals for the Third Circuit for review of the GenX health advisory. In its filing, Chemours argued that the health advisory was “arbitrary and capricious” by challenging EPA’s scientific assumptions, but Chemours also made a more radical argument: “The manner in which EPA has used its Safe Drinking Water Act authority to issue health advisories violates constitutional requirements, including the nondelegation doctrine, because EPA has utilized unfettered discretion to publish health advisories,” and had thus affected “the legal rights and obligations of companies, water utilities, and others across the country without sufficient legislative direction or regulatory safeguards.”[1]

Chemours’ suit was probably in part a response to the North Carolina Department of Environmental Quality’s letter to Chemours requiring it to “revise its Drinking Water Compliance Plan and Feasibility Study Report and provide public water or whole building filtration systems to any party with a private drinking water well contaminated by GenX chemicals in exceedance of 10 ppt.” This demand was in accordance with a consent order agreed to between the North Carolina Department of Environmental Quality, Cape Fear River Watch, and Chemours in 2019, requiring that Chemours provide water to substitute for any “private drinking water well that has been found through testing validated by DEQ to be contaminated by concentrations of GenX compounds in exceedance of 140 ng/L, or any applicable health advisory, whichever is lower.”[2]

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