Petitioners filed their opening briefs in the consolidated challenge to the Environmental Protection Agency’s (“EPA’s”) Final Rule establishing Maximum Contaminant Levels (“MCLs”) and Maximum Contaminant Level Goals (“MCLGs”) for six PFAS in drinking water.
Three petitions were filed this summer in U.S. Court of Appeals for the D.C. Circuit by American Water Works Association (“AWWA”) and the Association of Metropolitan Water Agencies (“AMWA”) in Case No. 24-1191, the American Chemistry Council (“ACC”) and National Association of Manufacturers (“NAM”) in Case No. 24-1188, and The Chemours Company FC (“Chemours”) in Case No. 24-1192. The cases were consolidated into Case No. 24-1188.
Petitioners challenge EPA’s Final Rule which established MCLs at 4 parts per trillion (“ppt”) for two PFAS, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), and 10 ppt for three other PFAS, perfluorohexane sulfonic acid (PFHxS), perfluorononanoic acid (PFNA), and hexafluoropropylene oxide dimer acid (HFPO-DA). The Final Rule also requires that public water systems comply with a Hazard Index of 1 for mixtures comprising two or more of PFHxS, PFNA, HFPO-DA, and perfluorobutane sulfonic acid (PFBS).
Petitioners NAM, ACC, and Chemours (collectively “NAM Petitioners”) filed a joint brief in which they argued that EPA’s cost benefit analysis, which resulted in approximately $760,000.00 in annual compliance, was unlawful. Petitioners argued that EPA grouped substances together rather than analyzing the individual cost benefit of each substance and wrongfully omitted $82 million from the total quantified cost calculation which was attributed to the treatment cost of HFPO-DA, PFNA, and PFBS. NAM Petitioners further argued that the Final Rule is unlawful because it regulates mixtures of contaminants when the Safe Drinking Water Act authorizes EPA to regulate levels of individual contaminants only. NAM Petitioners also argued that regulating HFPO-DA was improper because data overwhelming shows that it does not frequently occur in public water systems.
Petitioners AWWA and AMWA (collectively “AWWA Petitioners) argued in its brief that EPA improperly deviated from the procedural process for issuing regulations when it issued a proposed regulation prior to issuing its Determination to Regulate. AWWA Petitioners also argued that the hazard index is not appropriate for regulating mixtures. Further, AWWA Petitioners argued that there is no substantial likelihood of frequent occurrences of HFPO-DA, PFNA, and mixtures in public water systems. AWWA Petitioners also argued that EPA significantly underestimated compliance costs. Specifically, EPA’s cost models were underestimated by approximately 330% and in fact, those costs would be most significant on small water systems and average from hundreds to thousands of dollars for individual households.
The Chamber of Commerce filed an amicus curiae brief in support of Petitioners arguing that the EPA failed to properly assess the costs and benefits of the Final Rule. Specifically, the Chamber of Commerce cautioned that the annual compliance costs for PFOA and PFOS are approximately $2.5-$3.2 billion. It also raised concerns with the added costs associated with the increased demand for laboratories, engineering consultants, planners, contractors, and skilled treatment operators. The Chamber of Commerce also argued that the Science Advisory Board, with whom EPA is supposed to consult before proposing a drinking water regulation, advised EPA that the Hazard Index approach is appropriate only as a screening tool and that if a potential risk was identified, it should be further evaluated.
Intervenors Concerned Citizens of WMEL Water Authority Grassroots, Environmental Justice Task Force, Fight for Zero, Merrimack Citizens for Clean Water, Natural USCA Resources Defense Council (“NRDC”), Buxmont Coalition for Safe Water, Newburgh Clean Water Project, Clean Haw River, Clean Cape Fear will submit their brief on January 17, 2025. The Center for Environmental Health, Cape Fear River Watch, Toxic Free NC, Harper Peterson Michael Waters and the State of Connecticut will also file a amicus curiae brief next month in support of Respondents.
The cases are National Association of Manufacturers, et al v. EPA, D.C. Cir., 24-01191, The Chemours Company FC, LLC v. EPA D.C. Cir., 24-01192 and American Water Works Association, et al v. EPA, Fed. Cir., 24-01188 which are consolidated under Docket No. 24-01188.
[View source.]
