As previously reported, The Chemours Company FC, LLC (“Chemours”) challenged the United States Environmental Protection Agency (“EPA”)’s Health Advisory Level (“HAL”) of 10 ppt for HFPO Dimer Acid, a.k.a. GenX, in the U.S. Court of Appeals for the Third Circuit.   The briefing continued throughout June and July, with final briefs submitted last week. 

EPA argued in its briefing that the HAL is not a reviewable final agency action under the Safe Drinking Water Act (“SDWA”), and that therefore Chemours lacked standing to challenge the advisory.   EPA also argued that it did not violate rulemaking requirements by failing to submit the HAL for public notice-and-comment because those procedures do not apply to the HAL, and secondly, even if they did, the HAL is nonbinding and nonregulatory. EPA also argued that the HAL is reasonable, and its use of the relative source contribution is within EPA’s authority.  Finally, in response to Chemours’s argument that the HAL ran afoul of nondelegation principles, EPA argued that the SDWA’s health advisory provision does not improperly delegate legislative power to the agency because legislative action involves altering the legal rights of a person and the health advisories “are by definition ‘not regulations’ and do not alter any rights, duties, or relations.”

The court granted a motion to allow briefing from a number of environmental organizations and individuals. These intervenors submitted a brief that reiterated many of EPA’s arguments, such as lack of jurisdiction and the inapplicability of notice-and-comment procedures, and further argued that the nondelegation doctrine does not apply to the HALs because the advisories are not regulations and instead, “simply inform the public of EPA’s analysis concerning drinking water contaminants’ adverse effects.” 

Among the arguments raised by Chemours in its briefing were that the HAL is a final agency action because the advisory is automatically incorporated into substantive standards under a series of interlocking state and federal authorities; that the advisory required public notice and comment; and that the Advisory is substantively unlawful for a number of reasons including that EPA considered non-drinking water sources in setting the advisory level.   The court has not yet scheduled oral argument.

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