US Chemical Producers Sue EPA over new PFAS Limits

24.08.2022 - American Chemistry Council (ACC), the industry association representing US chemical producers, is suing the US Environmental Protection Agency (EPA) over its Lifetime Health Advisories (LHAs) for per-fluoroalkyl and poly-fluoroalkyl chemicals (PFAS).

The association said the revised guidelines for PFOA and PFOS published in June reflect the agency’s failure to follow its accepted practice for ensuring the scientific integrity of its process.

Although the EPA mandates that drinking water standards for the so-called “forever chemicals” must be based on the best available science, the industry says the agency relied on data that was not peer-reviewed by its own Science Advisory Board.

Disagreement between chemical producers and the US environment watchdog is not uncommon. ACC has repeatedly sparred with the EPA over restrictions on controversial substances such as chlorpyrifos, glyphosate or bisphenol A.

According to the ACC, the EPA’s new safe limits for PFAS in water – the threshold below which adverse health effects are not expected to occur —  are 3,000 to 17,000 times stricter than 2016 levels, which means that even the amount of PFAS found in rainwater is now considered unsafe.

The agency has promulgated LHAs that are so low they can’t be detected by its own current measuring methods, further calling into question the scientific validity of the agency’s designation, the chemicals grouping charges.

While the LHAs are not binding regulations, they can provide guidance to federal, state and local governments in developing binding regulations, including those for future Maximum Contaminant Levels (MCLs), the producers point out. What worries them is that these will likely serve as the foundation for future regulation of PFAS.

Regulations that lower the MCLs or ban the use of PFAS could derail the Biden administration’s plan to return semiconductor manufacturing to the US, as a large production of advanced semiconductors requires PFAS, the association argues.  

Also, ACC says, unnecessarily low regulatory levels or bans could harm renewable energy efforts and negatively impact many industries, such as aerospace, automotive, building and construction, electronics and pharmaceuticals, especially as there are no substitutes for some applications.

In addition to the ACC litigation, there have been several other lawsuits from the chemicals side seeking to overturn the LHAs. To start, the plaintiffs say, there are no definitive studies demonstrating that PFAS actually cause any adverse health effects in humans; even studies that suggest a link between exposure to the chemicals and human health problems are unable to determine a minimum level of exposure level.

Separately, Chemours, the former DuPont chemicals division, has filed suit against the EPA, challenging its LHA for GenX. Here, too, the charge is that the agency “relied on bad science.” Specifically, the company accuses the agency of using scientific data that its own peer reviewers call extreme and excessive.

Apart from the federal government, several US states and communities for years have been embroiled in disputes with chemical manufacturers such as DuPont, Chemours or 3M. In some cases, hefty fines have been handed out.

So far, only Maine has moved to ban all uses of PFAS, while 11 states have taken action to eliminate the chemicals in food packaging. Six additional states are eliminating PFAS in textiles, and three plan to banish them from cosmetics.

The US House of Representatives, in allocating the next budget for the Department of Defense (DoD), this summer voted to require the DoD to monitor and reduce potential contamination by PFAS, which has led to groundwater contamination, also at military sites where products containing the chemical, such as fire-fighting foam, are frequently used. Personnel who work with the foams reportedly have higher levels of PFAS in their blood.

Advocacy groups also suing the EPA

In related news, some health and environment advocacy groups are suing the EPA for letting PFAS polluters off too easy. Local North Carolina groups such as Center for Environmental Health, Cape Fear River Watch, Clean Cape Fear, Democracy Green, the NC Black Alliance and Toxic Free NC have slammed the agency for its decision not to require Chemours to conduct studies on PFAS.

Chemours’ plants have been pinpointed as the source of GenX pollution in the Cape Fear River. In July, the EPA granted the coalition’s petition in part, but only included limited testing of seven of 54 PFAS that were due to be reviewed. This means, the plaintiffs say, that there will be no required epidemiological study of communities affected by PFAS and no testing on PFAS mixtures in drinking water and citizens’ blood.

If any of the lawsuits succeed, they will surely face legal challenges. Should these end up in the US Supreme Court, the advocacy groups fear that the current right-leaning justices would side with polluters.

In a case involving clean air regulations, at the end of June the justices ruled 6-3 along ideological lines that regulating emissions from power plants is not the prerogative of the EPA and that rules for fighting climate change should be left to Congress.

Up to now, Congress has shown little interest in climate legislation, traditionally preferring to leave such regulations to the states.

Author: Dede Williams, Freelance Journalist