SOUTHEASTERN N.C. — Local Cape Fear advocates are appealing a federal lawsuit after Judge Richard Myers denied their petition to force the government to order health studies on the impacts of PFAS.
A coalition of nonprofits sued the U.S. Environmental Protection Agency after it did not fulfill its petition to require Chemours to fund studies on 54 chemicals coming out of its Fayetteville Works Facility.
Myers ruled on March 30 to dismiss the lawsuit against the EPA after hearing from both sides in the U.S. District Court for the Eastern District of North Carolina in Wilmington on Feb. 14.
The judge was clear in February’s hearing that the EPA is only required to initiate the testing process by law, not necessarily fulfill the petition to the scope of the defendants’ wishes. Myers said the agency did that with its PFAS Strategic Roadmap, even though the nonprofits said it did not cover their entire request.
Cape Fear River Watch, Center for Environmental Health, Clean Cape Fear, and Toxic Free NC are behind the litigation and making the appeal. They’re represented by attorney Bob Sussman.
“This is a troubling and deeply wrong decision that effectively dismantles the powerful judicial remedy granted by TSCA to citizens who unsuccessfully petition EPA for vital public health protections,” Sussman said in a press release.
TSCA is the Toxic Substance Control Act, a national program for assessing and managing the risks of chemicals. The public can request testing on certain chemicals under the 1976 ruling.
Sussman submitted an appeal to the Fourth Circuit Court of Appeals on Tuesday, though he said any decision will likely take a couple months.
“We are appealing this disappointing decision because it serves no one but the chemical companies who continue to hold hostage our regulatory institutions at the expense of our health and wellbeing,” Clean Cape Fear co-founder Emily Donovan said in the release.
Cape Fear River Watch executive director Dana Sargent said the ruling sets a “dangerous precedent” for protections under TSCA.
“This EPA, and EPAs under future administrations, have now been given carte blanche to continue this semantic trickery to claim they’ve granted petitions while actively denying them — effectively denying the needs of communities and supporting industry polluters,” she added.
In October 2020 the nonprofits petitioned the EPA to use its authority under the TSCA and order testing on 54 PFAS. They demanded Chemours, which has been dumping toxic pollutants into the Cape Fear River for four decades, bankroll the studies.
Though EPA first denied the petition, after reconsideration it was granted but only for seven of the chemicals. The nonprofits considered the move a denial, since only 3% of its request was approved.
In January 2022, the group pursued litigation against the EPA to do more in The Center for Environmental Health v. Michael Regan — in his official capacity as administrator of the EPA. The federal agency moved to deny the case entirely.
“Under the decision, EPA can reject 97% of a petition but avoid accountability in the courts by claiming it ‘granted’ the petition,” Sussman said in the release. “By siding with the agency, Judge Myers wrote a blank check to EPA and denied communities their day in court without examining the glaring disconnect between what EPA claimed it did and the limited and unresponsive testing it is in fact requiring.”
In the end, Myers determined the EPA did not deny the nonprofits’ request. In his ruling, he added the court lacks jurisdiction to review the grant.
The submitted appeal seeks review of Myers’ decision. The studies requested would provide insight into the health impacts of PFAS found in the water, air and blood of Cape Fear residents. Little to no health data is currently available on the impact these chemicals have long-term.
“Chemours, the polluter that is now off the hook for testing its chemicals, may benefit from this decision, but public health will not,” Sussman said.
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