The U.S. Court of Appeals for the Third Circuit dismissed a petition filed by The Chemours Company FC, LLC (“Chemours”) challenging the United States Environmental Protection Agency (“EPA”)’s Health Advisory Level (“HAL”) of 10 parts per trillion (ppt) for HFPO Dimer Acid, a.k.a. GenX.  

Chemours argued that the advisory was flawed, based on questionable science, and exceeded the EPA’s authority. They claimed the advisory could significantly harm their business operations by influencing regulatory bodies, public perception, and potentially leading to costly compliance measures.

The Third Circuit dismissed the petition for lack of subject matter jurisdiction, determining that the GenX HAL was not a final agency action. The court emphasized that judicial review is only applicable to agency actions that impose legally binding obligations. The court found that the advisory was informational, not regulatory, and therefore was not subject to judicial review. The case is The Chemours Co. FC LLC v. U.S. Environmental Protection Agency et al., case number 22-2287, in the U.S. Court of Appeals for the Third Circuit.

Chemours may appeal the Third Circuit’s decision to the U.S. Supreme Court but it appears unlikely do so.  Following issuance of the GenX HAL, on April 10, 2024 EPA issued a final maximum contaminant level (MCL) for GenX  of 10 ppt (the same level as the HAL).   Chemours has challenged the GenX MCL in the United States Court of Appeals for the D.C. Circuit (The Chemours Co. FC LLC v. U.S. Environmental Protection Agency et al., case number 24-1192, in the U.S. Court of Appeals for the District of Columbia Circuit.).  We will continue monitoring this case. 

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