NORTH CAROLINA — A long fight to mandate comprehensive PFAS testing in North Carolina may continue after three judges appeared sympathetic to local nonprofits’ argument at a recent hearing.
On Tuesday, attorney Bob Sussman — representing the Center for Environmental Health, Cape Fear River Watch, Clean Cape Fear, and Toxic Free NC — argued against the Environmental Protection Agency before the U.S. Court of Appeals for the 4th Circuit in Richmond, Virginia.
Sussman called to reverse a district court’s dismissal of the groups’ petition — Center for Environmental Health (CEH), et al., v. EPA — to require Chemours to fund testing of 54 PFAS compounds in North Carolina. Chemours, a spinoff of DuPont, released PFAS into the Cape Fear River for 40-plus years from its Fayetteville Works facility, 100 miles upstream from Wilmington.
The groups sued the EPA in 2022 for failing to grant their 2020 request to hold Chemous accountable for funding research on the health impacts of PFAS contamination on residents, produce, and the environment. They cited the Toxic Substances Control Act, which allows citizens to petition the EPA to regulate and study chemical substances posing a reasonable risk to human health and the environment.
In March 2023, Judge Richard Myers II sided with EPA’s motion to dismiss the suit. The EPA argued it was already granting the groups’ request through its National PFAS Testing Strategy; the agency agreed to study the compounds as a group and assess their impact on human health.
Sussman filed a notice of intent to appeal less than a month later. He argued the judge didn’t independently review the petition and relied on EPA’s determination of whether or not it had granted the request. The attorney filed the appeal in August 2023, arguing EPA’s preferred testing strategy was insufficient, vague and indeterminate.
In a press release issued Tuesday morning, the environmentalists reiterated their views — EPA’s preferred route would only encompass 3% of the plaintiff’s requested studies.
They note it does not include a large-scale, epidemiological study of exposed communities funded by Chemours, nor would it include health studies on Chemous-specific PFAS in residents’ blood or examine mixtures of different PFAS compounds in local water and wells.
At the hearing, Sussman emphasized the suit is not requesting studies on the full class of PFAS chemicals, which different agencies define to be around 6,500 to over 12,000 compounds. He is asking for a much smaller set of 54 compounds specific to Chemours’ discharges in North Carolina.
Sussman argued the EPA’s current strategy was slow-moving and may change over time. Also, he expressed doubt the 54 requested compounds would even be tested.
Cape Fear River Watch Executive Director Dana Sargent told Port City Daily she believes insufficient data regarding the long-term health effects of the 54 individual PFAS compounds — as well as their impact when mixed together — warrants extensive testing. The EPA’s broad categorization strategy, she said, is “bad science.”
“They’re not doing what the petition asked them to do,” she said. “But they’re trying to claim they are. They’re trying to spin it as if they are. When they know damn well that they’re not.”
The three judges on the fourth circuit panel — James Wynn, George Steven Agee, and John Gibney — each expressed doubt EPA’s testing strategy sufficiently “granted” the petitioners’ request during the hearing.
“If the EPA simply says it’s a grant and they’re not granting anything, that’s not a grant is it, that’s really a denial?” Judge Agee asked Department of Justice attorney Michelle Melton, who represented the EPA.
Each side had debated the core issue and positions, as well as responded to judges’ questions.
Melton contended the EPA sufficiently granted the request by initiating studies on PFAS as a chemical class and defining the compounds is a developing process on the “cutting edge” of science the agency is working toward with Congress. The EPA has argued data gaps for most of the 54 chemicals in the petition would be covered through their current strategy.
Melton said she thinks “the agency is entitled to a presumption of regularity.” The Supreme Court defines it as a “general working principle” that executive branch employees are lawfully discharging their duties.
“And, absent a compelling showing that the agency was engaged in bad faith, I believe the court would have to accept that the EPA has granted [the request],” she said.
Sussman noted Wynn — a Robersonville, North Carolina, native who served on the state’s Supreme Court and North Carolina Court of Appeals — seemed particularly active during the hearing.
“There are instances where EPA can say ‘we grant’ and they are not granting,” Wynn said to Melton. “You accept that that can happen?”
Melton conceded such an action could be a “concern,” to which Wynn responded: “It’s more than just a concern — it’s the issue in this case. This is what’s being brought to us — the question of whether what you call a grant effectively denied it.”
While the judges repeatedly expressed skepticism of EPA’s position, they did not affirm Sussman’s view the agency acted improperly on their petition. Wynn also expressed uncertainty petitioners had proven the need to individually study the 54 requested chemicals.
Sussman told PCD he left the meeting with a feeling of “cautious optimism that the case might be moving in the right direction.”
“Our key points were registering with the judges and they showed some sympathy for our position,” he said.
Sussman emphasized he wasn’t certain the judges would rule in his favor; he expects them to put forward a written opinion within two to six months. In the months before issuing their statement, the judges will research the issue and confer with each other to try to reach a consensus opinion.
If the appeals court determines Myers made an error in dismissing the suit, the groups can return before the district court to litigate their case against the EPA; Sussman said there are unanswered questions as to how Myers would respond to a resolution challenging his dismissal.
“He’s a conscientious judge,” he said. “I’m sure he respects the court of appeals. And I think he will do a good faith job to follow their decision.”
Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.
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