Posted on July 26, 2022 by Seth Jaffe
Last month, EPA issued interim health advisories for PFOA and PFOS that took many people’s breath away. It is rather amazing how quickly we’ve moved from parts per billion past parts per trillion to the low parts per quadrillion range.
At the same time, EPA issued a final health advisory for GenX compounds, setting the level at 10 parts per trillion. Although the GenX advisory is roughly three orders of magnitude higher than that for PFOA or PFOS, it still had a seismic effect. It’s important to remember that PFOA and PFOS have been phased out and that GenX was developed as a safer replacement. Moreover, its importance in manufacturing cannot be overestimated.
The EPA health advisory prompted a law suit earlier this month by Chemours, which manufactures GenX. In its petition to the 3rd Circuit Court of Appeals, Chemours emphasized the importance of its products:
Fluoropolymers are used in every car, airplane, and cellphone. They are also critical to maintaining the integrity and quality of the vast majority of prescription drugs; to producing medical equipment such as catheters, saline bags, and filtration devices for newborns; and to manufacturing computer chips.
Fluoropolymers are also necessary for the advancement of green technology: They are used to produce hydrogen from renewable sources and are at the heart of the hydrogen fuel cell. In sum, the responsible manufacturing of fluoropolymers in the United States is critical to furthering U.S. technology leadership; onshoring key industries (including semiconductor manufacturing); and enabling American supply chain resiliency and security.
EPA’s health concerns and Chemours’ economic concerns may be why, in reporting on the suit, Greenwire (subscription required) described the upcoming battle over PFAS as likely to be “ferocious”. Nice word choice and probably not far off the mark.
I don’t really have a view about the substantive merits of the petition, but I’ll note two points. First, health advisories have no regulatory impact and it’s not at all obvious that the issuance of the advisories constitute final agency action.
Second, and more importantly, the dispute over the health advisories points out a recurring weakness that we see in our environmental health statutes. Health advisories are different from national ambient air quality standards, since NAAQS do have regulatory consequences. However, they are similar in that EPA goes through a scientific process to determine the risks posed by some type of exposure to some type of chemical. That process evaluates risk, but it does not address benefits.
Once the “standard” or “advisory” is published, real-world consequences follow – regardless of the formal legal impact. And we still haven’t figured out a way to balance costs and benefits.
Sometimes, I despair that we ever will. The ferocious battles will resume, but little will be resolved. Déjà vu all over again.