EPA’s Motion to Dismiss Chemours’ Challenge of the GenX HAL Denied

As previously reported, The Chemours Company FC, LLC (“Chemours”) filed a Petition for Review with the Third Circuit U.S. Court of Appeals challenging the United States Environmental Protection Agency (“EPA”)’s Health Advisory Level (“HAL”) of 10 ppt for HFPO Dimer Acid, a.k.a. GenX.  EPA moved to dismiss the petition on the basis that the GenX HAL is not a final agency action and Chemours lacks standing to bring the challenge.  EPA asserted that the HAL does not constitute final agency action because it does not impose any direct and appreciable legal consequences, a position that Chemours disputed on several bases, including the incorporation of the HAL as an enforceable standard by states in underground injection well programs and as ARARs at Superfund sites. Chemours also noted the HAL’s impact on permitting requirements imposed on its operations at its Fayetteville, NC facility, where it manufactures GenX, and in West Virginia and New Jersey where it uses GenX in its operations. A three-judge panel of the Third Circuit denied EPA’s motion to dismiss in a one-page order dated December 6, 2022. EPA has also filed a motion to dismiss a petition filed by the American Chemistry Council in the U.S. Court of Appeals for the District of Columbia Circuit challenging EPA’s interim updated HALs for PFOA and PFOS.  That motion is still pending.