By Lisa Sorg, NC Policy Watch
Every day for more than 10 years, Richard Myers II unknowingly drank water contaminated with toxic PFAS. In the 1980s and ‘90s, when Myers was a student at UNC-Wilmington, DuPont – later spun off as Chemours – was pumping those chemical compounds into the Cape Fear River. From there, PFAS entered Wilmington’s drinking water supply and flowed from the taps of hundreds of thousands of people, including Myers.
Now a Chief US District Court judge, Myers understood the stakes of the case before him.
“I’m not unsympathetic, being in Wilmington where this court sits,” he told those assembled in the courtroom last week. “When I took this case, I knew I had to separate my personal concerns from the legal concerns. I’m going to take my time. It’s important.”
The case stemmed from a petition filed by a half dozen environmental and public health groups with the EPA in October 2020. The petition demanded that the agency force Chemours to study the health effects of 54 toxic PFAS specifically on people living near and downstream of their Fayetteville plant.
The advocates reasoned that since Chemours and its predecessor had contaminated public and private water supplies with these harmful compounds, it only seemed right that the billion-dollar company, with oversight by independent scientists, pay to study the people it had poisoned.
In January 2021, in the waning days of the Trump administration, the EPA denied the petition. Shortly after President Biden was elected, advocates appealed to the EPA to reconsider. Since the EPA Administrator was now Michael Regan, who had first confronted the PFAS crisis as North Carolina’s Secretary of the Environment, advocates thought they had a better chance of success.
In December 2021, the EPA announced it had reversed its earlier decision and granted the petition.
Hold the applause, the advocates argued however, things weren’t quite what they appeared at first blush. In the lawsuit before the district court, they alleged that the EPA had actually denied their petition but was masquerading it as an approval.
For example, the agency agreed to test only seven of the 54 types of PFAS. The EPA rejected the advocates’ request for biomonitoring of Chemours employees. It declined to mandate testing of mixtures of the compounds in blood. And it did not mandate a comprehensive epidemiological study of Cape Fear Basin residents who have been exposed to PFAS from the Chemours plant.
“I’m honestly struggling to understand how a petition response that rejected 97 percent of it is a grant,” the advocates’ attorney Bob Sussman told Myers in court last week. “I’ve never seen the EPA deny a petition but claim it had granted it by saying it was doing something related.”
The EPA responded that the agency had granted the petition, just not in the manner the advocates had requested.
“The plaintiffs want to fill the information gap in a very specific way,” the agency attorney argued. “The EPA has a different strategy.”
Cape Fear River Basin residents: We want comprehensive health testing
Because of the widespread use of PFAS – in microwave popcorn bags, pizza boxes, cosmetics, fast food containers, firefighting foam, stain-, water-, and grease-resistant fabrics, and hundreds of other consumer products – nearly everyone has some level of PFAS in their blood.
There are upward of 12,000 types of PFAS; they’re known as “forever chemicals” because they persist in the environment for hundreds, if not thousands of years.
While the chemical industry has long known these compounds were hazardous to public health and the environment, only in the last 10 years have independent scientists begun to understand the health risks presented by these compounds.
Depending on levels of exposure, PFAS have been linked to multiple health problems, including thyroid and liver disorders, reproductive and fetal development problems, high cholesterol, a suppressed immune system, and kidney and testicular cancers.
In court, EPA lawyers said the agency’s “national testing strategy,” will also address the advocates’ requests in the petition.
But the Lower Cape Fear River Basin is a special case. Residents have been exposed to a mixture of PFAS, whose cumulative and interactive effects are unknown. In the early days of the North Carolina crisis, in the summer of 2017, UNC Wilmington scientist and professor Larry Cahoon called the drinking water a “toxic cocktail.”
The advocates’ petition asks for studies about the toxicological burden, specifically on Cape Fear Basin residents. Empowered with this information, residents and their doctors can make scientifically sound decisions on health.
(A similar broad and years-long study occurred in Parkersburg, West Virginia, paid for by DuPont and compelled by the courts. The data gleaned from that study has been instrumental in helping scientists understand the health effects of PFAS exposure.)
At recent public forums, NC State, Duke and East Carolina scientists have released blood studies for 1,020 Cape Fear Basin residents, including those who live farther upstream in Pittsboro. They found nearly 30% of those tested had levels of PFAS in their blood above 20 parts per billion. Those residents, the scientists said, should undergo proactive health screenings for conditions linked to the compounds.
Even blood levels of between 2 and 19 parts per billion could elevate health risks, the scientists added. More than two-thirds of those tested had levels in that range.
Dr. Kyle Horton is a Wilmington doctor. “We don’t have the evidence we need on mixtures we’re finding in your blood,” Horton said at an event after the court hearing. “People ask, ‘Did PFAS cause my condition?’ Doctors don’t have the evidence, so we can’t give advice. We don’t have answers for these folks.”
(Story continues below the box.)
Understanding controlling statute without a law degree
Both sides’ legal arguments are rooted the Toxic Substances Control Act, known as TSCA. It was passed in 1976 by Congress and significantly strengthened by several amendments in 2016.
The intent of TSCA is to require chemical manufacturers to provide information on the environmental and public health effects of their products. Congress has granted the EPA the authority to enforce regulation of these substances and mixtures, including reporting, record-keeping and testing.
A Senate report published on the original law reads: “As the industry has grown, we have become literally surrounded by a man-made chemical environment. We utilize chemicals in a majority of our daily activities. We continually wear, wash with, inhale, and ingest a multitude of chemical substances. Many of these chemicals are essential to protect, prolong, and enhance our lives. Yet, too frequently, we have discovered that certain of these chemicals present lethal health and environmental dangers.”
TSCA is a lengthy document. However, five sections are key to the lawsuit filed against the EPA by environmental and public health groups.
The American Bar Association published an easy-to-understand (as legal books go) guide to TSCA, the source for much of the legal information quoted below:
Section 4 – Strengthens EPA’s authority to “compel the development of information and testing needed to understand the effects of chemical substances and mixtures on human health and the environment.” It allows EPA to require a broad range of testing for exposure and potential for exposure. Both of these provisions also apply to PFAS.
This section also directs the agency to reduce and replace the use of animal testing when practical. The plaintiffs in the recent lawsuit say they are already the guinea pigs for PFAS exposure; that’s why they want a human health study on those living in the Cape Fear River Basin.
Section 19 – Allows any person to “seek judicial review” – the legal opinion of a judge – of an EPA final rule or order that is subject to TSCA regulations.
In the North Carolina PFAS case, the plaintiffs did just that when the EPA originally denied their petition asking the agency to force Chemours to test 54 types of PFAS. This occurred under the Trump administration.
After President Biden was elected, the EPA reconsidered. In December 2021 the agency announced it had reversed course and “granted” the petition. However, the plaintiffs argue that the EPA actually denied most of the request and is shielding itself from further legal action by claiming the contrary.
Section 20 – Allows people to file citizen suits against the EPA to compel the agency to enforce TSCA. The suits are heard in US District Court, in the jurisdiction where the violation allegedly occurred. This is why the recent case is being heard in Wilmington.
Section 21 – Similarly, any person can petition the EPA to enact, change or repeal a rule. If the petition for a new rule reaches the courts, then the judge must allow a de novo review. That’s Latin for allowing new evidence and testimony to be introduced, on which the judge can rule.
Section 26 – Authorizes the EPA to treat a group of chemical substances – such as PFAS – as a category. That classification kicks in if the chemicals are similar biologically, chemically or physically, or in molecular structure. That describes PFAS, which sometimes differ only by one molecule.
This section is relevant to the current court case because if the EPA agrees that PFAS is a “category,” then the agency must direct Chemours to test each of the 54 compounds that the plaintiffs have asked for.
Among the legal nuances in the case is whether the advocates filed a single petition or 54 separate ones for each type of PFAS, all gathered under one document.
This is important because, as the EPA contends, if there is just one petition, that bolsters the agency’s claim they granted it. “The EPA has deference in how it chooses to respond to multiple requests within one petition,” agency lawyers told the court.
But if the judge deems there are 54 petitions, then the EPA’s decision could be recast as a partial granting and a partial denial. That opens more legal options for the advocates to appeal.
However, there is little case law on partial grants and denials, Myers said. This court could set a precedent.
The courts have historically refrained from inserting themselves into the EPA’s scientific minutiae, preferring to leave those calls to agency experts. Myers told Sussman, the advocates’ lawyer, that he “can’t order them to do the testing you want,” only that they have to start the process.
Sussman countered that the advocates are “just asking you to ask them to take the steps in the petition.”
“It’s one thing to hear ‘the agency feels our pain,'” Sussman went on, “but that doesn’t mean the agency testing strategy would possibly lead to answers to questions the petitioners posed.”
Myers also asked the EPA whether it planned to test PFAS as a category, which would trigger an analysis of all 54 compounds, not just seven.
“It’s too hard to say right now,” the EPA lawyer replied. “We don’t know. We can’t tell what we’re going to do, but we’ll start.”
The pace of EPA’s meaningful PFAS regulations has been glacial, at best. The agency had announced it would complete 24 testing orders by the end of 2021. It has finished just two.
A recent report by the Environmental Working Group showed that more than a third of scheduled actions on PFAS are overdue.
The EPA announced it would release a draft of drinking water standards for PFAS in fall 2022. It has yet to be released.
The EPA also announced on Jan. 20, 2023, that it would delay setting limits on industrial discharges of PFAS into waterways, known as Effluent Limitation Guidelines, the EWG report said. “The delay means PFAS pollution of water could remain unchecked for years.”
This halting approach harms the residents of the Lower Cape Fear River Basin, Sussman said.
“This could be a decades-long process. Meanwhile, we have an immediate concern for answers.”