As part of its lead up to issuing proposed and final drinking water standards for PFAS under the Safe Drinking Water Act (SDWA), EPA in June 2022 issued a Health Advisory Level (HAL) for four PFAS, including GenX. Chemours immediately challenged the HAL in court, arguing that the HAL was unfounded scientifically and that the EPA did not have authority under SDWA to create HALs.

This week, the U.S. Court of Appeals for the 3rd Circuit dismissed Chemours’s challenge to the GenX HAL on jurisdictional grounds. While Chemours raised several issues in its lawsuit to challenge the HAL, the Court focused first on whether the court even had the ability to examine the issue since HALs are generally considered non-regulatory and therefore unreviewable by courts. Since the court found that the HALs could not be judicially reviewed, Chemours’s challenge was dismissed and the court did not examine other issues raised by Chemours.

The crux of the court’s ruling was whether a HAL is a “final action” as defined under SDWA. Under the Supreme Court’s decision in Bennett v. Spear, in order to challengeable in a lawsuit, the agency action at issue must impose obligations or restrictions on parties, or the action must give rise to direct legal consequences. Chemours argued that the HAL has indirect consequences, such as in Utah where the HAL was used to adopt regulations in the state for GenX. In addition, Chemours argued that the HAL could be used to place conditions on permits at the state levels. These outcomes, Chemours argued, place restrictions on parties and could have legal consequences.

The court disagreed, ruling that any state that chooses to adopt an EPA HAL (akin to a recommendation) was an indirect result of the HAL and therefore failed to meet the “legal consequences” prong of the U.S. Supreme Court test for a court to hold that a HAL is a final and enforceable EPA action.

The 3rd Circuit decision is significant in that it provides support to EPA in its argument that HALs are merely advisories and not enforceable regulatory actions, and therefore not reviewable by courts. The implications go beyond merely this case and may impact other EPA actions that are under challenge or might be challenged as further EPA actions are taken for regulation. I expect, however, that the 3rd Circuit decision will be appealed to the U.S. Supreme Court for review, although it is certainly not a guarantee that the Supreme Court will accept review of this issue.