B&D Helps American Chemistry Council Challenge EPA’s Interim Health Advisories for PFOA and PFOS in Drinking Water

On July 29, 2022, Beveridge & Diamond principals Nessa Horewitch Coppinger and Tom Richichi (Washington, DC) filed a petition in the U.S. Court of Appeals for the District of Columbia Circuit on behalf of the American Chemistry Council (ACC), an industry trade association of companies engaged in the business of chemistry. The petition urges the Court to vacate the U.S. Environmental Protection Agency (EPA)’s “interim” health advisories, issued in June, that lowered the levels at which perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) are deemed safe in drinking water. PFOA and PFOS are the two most-studied per- and poly-fluoroalkyl substances (PFAS).

The petition, American Chemistry Council v. United States Environmental Protection Agency, No. 22-1177, argues that the interim health advisories circumvented the regulatory review requirements established by the EPA’s Safe Drinking Water Act (SDWA) and the Administrative Procedure Act, and sets unachievable enforceable standards. It says, “Such a standard, if set at the same levels as the ‘interim’ health advisories, is impossible to implement or enforce, as those levels are well below any known technical detection limits established by EPA’s own validated test methods. Even water that registers no detectable level of PFOA or PFOS cannot be confirmed to be in compliance with the parts per quadrillion ‘interim’ health advisory levels published by EPA. EPA should not be permitted to circumvent the SDWA’s provisions by issuing ‘interim’ health advisories based on faulty science that are infeasible to implement.”

ACC issued a press release stating that “ACC supports the development of drinking water standards for PFAS based on the best available science. However, EPA’s revised Lifetime Health Advisories (LHAs) for PFOA and PFOS reflect a failure of the Agency to follow its accepted practice for ensuring the scientific integrity of its process.” ACC hopes the challenge “leads to science-based policies that are protective of human health and the environment.”

This suit has been covered in several news outlets, including Inside EPA, Law360, Bloomberg Law, Global Legal Chronicle, and Greenwire (subscription may be required).

Supported by our robust Chemicals, Litigation, and Water practices, B&D helps companies—including trade associations and Fortune 500 companies—navigate the increasing regulation of emerging contaminants, including PFAS. Please contact Nessa Horewitch Coppinger and Tom Richichi with questions about the petition or our work in this area.