Thursday, June 13, 2024

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

The North Carolina General Assembly will consider a bill that requests further research and legal liability of GenX and other emerging contaminants. (Port City Daily /FILE PHOTO)
A judge has sided with the EPA on dismissing a lawsuit that would have the federal agency have Chemours pay for 54 PFAS tested for health effects on humans. (Port City Daily /File)

WILMINGTON — Federal Judge Richard Myers did not side with a group of nonprofits attempting to hold Chemours accountable to fund studies on the effects of PFAS on human health.

The Center for Environmental Health v. Michael Regan — in his official capacity as administrator of the EPA — was filed by Clean Cape Fear, Center for Environmental Health, Cape Fear River Watch, and others. 

READ MORE: No ruling yet as impacted communities plea for EPA to grant PFAS testing in federal hearing

The organizations sued the federal agency, claiming it did not fulfill a petition submitted in October 2020 under the Toxic Substances Control Act (TSCA). They asked the EPA to require Chemours bankroll studies on 54 per- and polyfluorinated substances — identified in the air, water, wells and in the blood of local residents. The goal was to learn more about repercussions “forever chemicals” have on those impacted.

Cape Fear citizens discovered in 2017 they had been exposed to toxic PFAS, specifically GenX, from Chemours dumping chemicals into the Cape Fear River from its Fayetteville Works facility over four decades.

The results of a recent GenX study done by N.C. State University, shows individuals living in the greater Cape Fear area have higher levels of PFAS in their blood than the U.S. average.

Thursday, Myers ruled in favor of EPA’s motion to dismiss the lawsuit. 

The EPA first denied the submitted 2020 petition, but then reconsidered it at the organizations’ behest. The federal agency initiated a limited testing order for 3% of the request — or seven of the 54 PFAS. The plaintiffs, represented by attorney Bob Sussman, considered the partial fulfillment a denial.

More than half of the 54 PFAS have little-to-no data or testing results associated with long-term health risks, while 24 do not fall under the agency’s “working definition” of PFAS. Scientists have urged the EPA to broaden its definition, which it says is “evolving” to include additional chemicals.

Attorney Elwood Lee on behalf of the EPA told the judge the nonprofits’ petition was a “key driver” for the federal agency to initiate its nationwide testing strategy, announced in October 2021. Called the “PFAS Strategic Roadmap,” it sets timelines to implement new policies and hold polluters accountable, and covers four years of increasing investment in research, restricting PFAS compounds and accelerating the cleanup of PFAS sites. 

EPA said it has begun testing a first phase of PFAS, grouped into 24 categories rather than one at a time. The agency claims nearly 3,000 PFAS will fall into the two dozen groupings and many substances requested by the nonprofits overlap ones already identified in its strategy.

Last June, the EPA directed Chemours to develop and submit information regarding 6:2 fluorotelomer sulfonamide betaine. Within this group, 30 of the 54 PFAS identified by the advocacy groups will be tested.

Sussman said the petition had a specific purpose that EPA’s strategy does not take into account: 24 testing orders by 2021. Currently, there are two.

The nonprofits’ asked for long-term studies, involving lab animals, to determine whether PFAS detected in human blood and drinking water cause cancer, reproductive damage and other diseases, as well as testing for its impact to the environment.

“There’s a disconnect,” Lee said at the hearing. “They want to fill that information gap in a specific way, but the EPA has a different plan on how to fill that.”

Myers 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.

“This is complicated, with lots of moving parts and not a whole lot of case support,” he indicated in February’s hearing.

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. 

“We knew when we went in that the judge was not on our side,” Sussman told PCD after February’s hearing. “I knew it was going to be a tough hearing.”

According to Clean Cape Fear, it’s considering an appeal and noted the outcome as another example of government agencies refusing to hold chemical companies accountable. Instead, CCF said Chemours holds regulatory institutions “hostage” at the expense of the public’s “health and wellbeing.”

“By dismissing our lawsuit, Trump-appointed Judge Myers has created a dangerous precedent for future EPA administrations to publicly grant citizen TSCA petitions while internally failing to do the work requested,” a statement from Clean Cape Fear noted.

ALSO: ‘Allow us the right to know what the risks are’: Nonprofits continue legal battle against EPA to test PFAS for health effects

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Shea Carver
Shea Carver
Shea Carver is the editor in chief at Port City Daily. A UNCW alumna, Shea worked in the print media business in Wilmington for 22 years before joining the PCD team in October 2020. She specializes in arts coverage — music, film, literature, theatre — the dining scene, and can often be tapped on where to go, what to do and who to see in Wilmington. When she isn’t hanging with her pup, Shadow Wolf, tending the garden or spinning vinyl, she’s attending concerts and live theater.

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