The increasing focus by environmental regulators on per- and polyfluoroalkyl substances (PFAS) continues to develop in significant ways. PFAS have been found in waterproof clothing, non-stick cookware, carpets, fire-fighting foam, and food containers, to name a few examples, among numerous industrial and chemical products. Last year, the U.S. Environmental Protection Agency (“USEPA”) issued its Roadmap previewing its approach to regulating PFAS more aggressively, including, for example, proposing to classify PFAS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and to invest in ‘researching, restricting, and remediating’ PFAS products, industries, and related activities.

Building upon its Roadmap, on June 21, 2022, the USEPA issued an advisory called Lifetime Health Advisories on Four Perfluoroalkyl Substances, setting interim controls and thresholds for PFAS in drinking water. Soon thereafter, on July 29, 2022, a court action was brought by the chemical industry group, American Chemistry Council (“ACC”), against the USEPA. This case appeals the agency’s advisory action to the District of Columbia Circuit Court of Appeals. American Chemistry Council v. US Environmental Protection Agency, No. 22-1177, U.S. Court of Appeals, D.C. Circuit. This case challenges the USEPA’s advisory and seeks to vacate the interim advisory and remand the issue back to the USEPA for further consideration.

The ACC’s petition specifically targets the USEPA’s lifetime drinking water advisories for two subcategories of PFAS, namely, Perfluorooctanoic Acid (“PFOA”) and Perfluorooctane Sulfonic acid (“PFOS”), asserting that the advisories are both scientifically flawed and procedurally improper, according to the Safe Drinking Water Act (“SDWA”) and the Administrative Procedure Act (“APA”). ACC points to four flaws within the advisories:

1. The advisories do not apply the best available, peer-reviewed science and supporting studies conducted in accordance with sound, objective scientific practices;
2. The human health risk communicated in the advisory is incomprehensible, incomplete, and not based on sound science;
3. The USEPA improperly circumvented the regulatory process for establishing an interim national primary drinking water regulation; and
4. The advisories are inconsistent with contemporaneous actions the EPA has taken with respect to screening levels for PFOA and PFOS.

The USEPA’s “interim” advisories are based on toxicity assessments that are still currently under review by the Science Advisory Board and are, therefore, likely to change depending on the Science Advisory Board’s recommendations. PFAS are a diverse universe of chemicals used in an extremely large number of applications across many industries. There are thousands of different chemicals within the general group of PFAS. Each chemical has unique properties, the environmental and health impacts of which are not proven to be uniform across all PFAS.

In 2016, the USEPA updated its PFOA and PFOS drinking water health advisories to establish limits of 70 parts per trillion, individually or combined. For context, one part per trillion is equivalent to one drop of water in an Olympic-sized swimming pool. As the ACC points out in its case against USEPA, the recent advisories are 3,000 to 17,000 times lower than those released in 2016. The USEPA, in its most recent advisory, deems one threshold to be one part per quadrillion, which is analogous to 1 drop of water in a thousand such pools. The ACC further analogizes this impossible standard to 1 second compared to 32 million years. The USEPA’s latest advisories effectively establish an interim primary drinking water standard that is impossible to enforce, the primary reason being that the levels of PFOA and PFOS are well below any known technical detection limits established by the USEPA’s validated test methods. As the ACC points out, although the USEPA’s advisories are technically “non-regulatory,” they are presented within an official USEPA “Lifetime Health Advisory.” The USEPA’s Advisory issued in June 2022 was issued prior to a review which is incomplete and still being conducted by the USEPA Science Advisory Board.

These interim advisories will have a further, yet immediate, effect on a substantial number of states that have received USEPA approval to carry out and enforce drinking water programs under the SDWA, as well as remedial cleanup standards. Procedurally, for these reasons, the ACC asks the D.C. Circuit Court of Appeals to strike the USEPA’s new interim decision and send the issue back to the USEPA for consideration under more appropriate scientific and legal foundations. Clearly, if the Court upholds the USEPA’s action, there will be difficulties and confusion across industries, especially where PFAS are difficult, if not impossible, to detect. If the Court sends the issue back to the USEPA, the dispute will hinge upon the degree of USEPA’s patience to consider additional and various comments and scientific perspectives, as well as its willingness to wait until more research based on the scientific method, can be accomplished.