Friday, June 14, 2024

‘Serious mistake’: Nonprofits appeal EPA lawsuit for PFAS testing

Nonprofits suing the EPA hold a rally Feb. 14 after the court hearing in front of Judge Richard Myers. (Port City Daily/Amy Passaretti Willis)

SOUTHEASTERN N.C. — In an ongoing lawsuit to compel the federal government to test specific PFAS residents in the Cape Fear River Basin have been exposed to, an appeal was filed Monday to overturn the judge’s decision to dismiss the case.

READ MORE: Nonprofits appeal judge’s dismissal of lawsuit against EPA

ALSO: Lawsuit: Judge favors EPA over organizations seeking studies on 54 PFAS effects

A group of nonprofits advocating for clean drinking water for nearly half a million people in southeastern North Carolina sued the Environmental Protection Agency December 2022 for not fulfilling a request to conduct health studies. On March 30, U.S. District Court for the Eastern District of North Carolina Judge Richard Myers favored EPA due to lack of jurisdiction and agreeing the agency granted the petition for testing PFAS — even if not in the way the nonprofits wanted.

Attorney Bob Sussman — representing Cape Fear River Watch, Center for Environmental Health, Clean Cape Fear, and Toxic Free NC — submitted a notice of intent to appeal less than a month later. Reasonings for the appeal were outlined when the motion was filed Monday.

In a press release, Sussman said the judge “made a serious mistake in accepting EPA’s irresponsible claim it had granted EPA’s petition when the plain reality was that EPA had refused communities what they desperately needed to understand impacts of PFAS pollution.”

He argues the EPA did not follow protocol under the Toxic Substances Control Act and “granted” the petition with a vague solution about possible future testing. He also blames the courts for not examining the petition itself, and making an independent decision on whether the petition was granted or not. Instead, Judge Myers agreed EPA “granted” the petition without review.

Sussman’s clients said in the motion EPA actually denied the request, only agreeing to 3% of their ask.

The group’s petition called for the EPA to test 54 PFAS specific to pollution from Chemours’ Fayetteville Works facility, 70 miles upstream from Wilmington. The plaintiffs are asking for human epidemiological studies on the potential health effects those chosen chemicals have on the residents exposed to them.

Chemours has been dumping toxic substances into the Cape Fear River for at least four decades and the risks are still largely unknown.

While the EPA “agreed” to the petition in December 2021 — after first denying it a year earlier — the nonprofits state the EPA’s decision did the following:

  • Failed to require testing on 47 of 54 PFAS
  • Restricted testing for 7 PFAS on a tiered approach that could result in no animal studies for critical end-points
  • Did not address the petition’s request for rodent carcinogenicity studies on 14 PFAS with substantial exposure from drinking water or in human blood
  • Did not require testing for GenX compounds
  • Refused to require a comprehensive epidemiological study of residents exposed to PFAS pollution by Chemours
  • Rejected requiring biomonitoring of Chemours employees
  • Declined to require testing on PFAS mixtures found in drinking water and in human blood of Cape Fear residents
  • Refused to require Chemours to develop and submit standards and methods on the 54 PFAS
  • Failed to address the petition’s request for ecotoxicity

Sussman argues for a “de novo” proceeding, meaning a full trial court with discovery and evidentiary hearings, as is permitted to any petitions EPA denies, under TSCA.

Signed into law by Congress in 1976, TSCA allows citizens to petition the EPA to create rules and orders for chemicals where there is not enough available information already to determine their health and environmental risks. TSCA also has authority to compel manufacturers to release data on the health and environmental effects of substances they release.

Sussman’s motion states Judge Myers should have reviewed the petition himself to make an independent determination if EPA did in fact grant or deny the request.

He states just because the EPA says it’s true doesn’t make it so.

In Judge Myers’ ruling, he said the EPA has to agree to begin a solution; it doesn’t have to perform tests explicitly as stated by petitioners. 

Sussman disagrees stating EPA’s actions were “vague and open-ended” with “possible future testing.”

While he states the EPA does have the discretion on the final rules created, the agency must begin studies as requested. Sussman also states the courts have flexibility in ordering the EPA to set deadlines and agree to certain provisions, though Judge Myers said the courts did not have jurisdiction.

If a petition is denied, the EPA has to publish its reasonings for public record. Based on the motion, the EPA’s practice has been to deny petitions lacking facts to show testing is necessary. Sussman said EPA never took a stance one way or another on whether their petition met the criteria, but he thinks it has per his interpretation of the law.

“EPA has never, before now, ‘granted’ a petition while refusing to initiate specific actions requested by petitioner,” Sussman states.

Since September 2007, EPA has denied 28 petitions under TSCA and granted three, according to its website.

Sussman argues allowing EPA to “grant” a petition while denying the majority of its contents, provides the government a way to avoid the courts and also not have to explain its basis for denial.

The motion also calls out EPA for allegedly not following the proper action under law, whether they denied or granted the petition. 

According to Sussman, if the petition was denied, the plaintiffs are allowed a trial, under law, to provide evidence and prove why the testing is needed. If it was “granted,” as EPA says it did, it means the petition in fact showed why studies were necessary, and therefore the agency must initiate a plan to comply.

Neither have been done.

“EPA subverted this scheme by ignoring the evidence presented by the petitioner, relying on largely unrelated testing that the petition did not seek, and rejecting nearly all the testing it proposed — all while purporting to ‘grant’ the petition,” Sussman states in the appeal motion.

Instead of granting the specific requirements the nonprofits wanted, the EPA said PFAS will be tested as a category under its established PFAS National Testing Strategy released in October 2021 — two months prior to the petition being “granted.”

The federal plan classifies 6,500 substances as PFAS and outlines a strategy to test them in categorized groups. In June 2022, EPA initiated its first rule, for a category of PFAS containing 2,000 similar substances.

According to Sussman’s motion, only seven of the 54 PFAS his clients want examined are listed with chemicals EPA plans to test first. Another 23 will not be individually tested but could fall into one of the categories. The PFAS Testing Strategy lumps “representative” PFAS into broad categories for testing, as opposed to individually. 

Nine are not covered at all but may be in the future. Another 15 do not fit the EPA’s definition of PFAS and therefore will not be included.

Sussman argues in the motion the 54 PFAS the nonprofits want examined are not interchangeable with the EPA’s general testing strategy — still years out. He also said the health effects of the very specific PFAS requested cannot be determined based on EPA’s broad approach to testing substances that Cape Fear residents may not have been exposed to.

It does not create a solution for the plaintiff’s intended objective.

According to 50 scientists who submitted letters of support for the nonprofits’ petition, EPA’s testing strategy is “unlikely to provide information on those PFAS with the greatest potential to harm exposed populations.”

The City of Wilmington, New Hanover County, 120 nonprofits, and seven North Carolina legislators also submitted letters of support in 2021, urging the EPA to require Chemours to fund the studies being requested.

The motion states the courts should vacate the district court’s dismissal and allow the case to continue. It requests a hearing be scheduled for oral arguments on the appeal.

“EPA is derelict in its duty to protect human health and the environment and while we don’t want to spend our limited resources fighting them in court – they continue to use taxpayer dollars to fight environmental and community groups in support of the multi-trillion-dollar polluting industry; we need to hold them accountable and we need these health studies,” Dana Sargent, executive director of Cape Fear River Watch, said in a release.

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