On September 15, 2022, the U.S. Environmental Protection Agency (“EPA”) filed a motion to dismiss the American Chemistry Council (“ACC”)’s petition for review challenging EPA’s interim Lifetime Health Advisory Levels (“HALs”) for PFOA (0.004 ppt) and PFOS (0.02 ppt).  EPA asserted in its motion that was filed with the US Court of Appeals for the District of Columbia that the ACC petition should be dismissed for lack of jurisdiction because: 1) the issuance of the health advisories is not subject to judicial review because they are not final agency action; and 2) the ACC lacks standing because it has not identified any injury that is fairly traceable to the interim HALs.  EPA asserts that the interim HALs are “merely informational documents imposing no rights, obligations, or the legal consequences on any party.”  EPA also asserts that ACC lacks standing to challenge the interim HALs because any injury that its members could possibly demonstrate could not be fairly traced to the HALs and that ACC could not demonstrate that any of its members would have standing in its own right. Acknowledging that the HALs relied on draft toxicity and relative source contribution values, EPA indicated that it is currently revising its health effects analyses and developing proposed national primary drinking water standards for PFOA and PFOS which are currently expected before the end of 2022.

As we previously reported, Chemours filed a petition for review challenging the HAL for GenX, which is pending in the Third Circuit. The Chemours Co. FC, LLC v. EPA, No. 22-1177 (3d Cir. July 22, 2022).  EPA reported in its motion to dismiss the ACC challenge that EPA is also moving to dismiss the Chemours petition.