The Chemours Company FC, LLC v. EPA

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 22-2287
____________
THE CHEMOURS COMPANY FC, LLC,
Petitioner
v.
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY; ADMINISTRATOR ENVIRONMENTAL
PROTECTION AGENCY
LACEY BROWN; CAPE FEAR RIVER WATCH; CENTER
FOR ENVIRONMENTAL HEALTH; CLEAN CAPE FEAR;
DEMOCRACY GREEN; KYLE HORTON; NATURAL
RESOURCES DEFENSE COUNCIL; NORTH CAROLINA
BLACK ALLIANCE; HARPER PETERSON; DEBRA
STEWART; TOXIC FREE NORTH CAROLINA;
MICHAEL WATERS*,
Intervenors
(*Pursuant to the Court’s Order dated 2/6/23)
____________
On Petition for Review of an Action by the
United States Environmental Protection Agency
(EPA No. 822/R-22/005)
____________
Argued on January 31, 2024
Before: CHAGARES, Chief Judge, RESTREPO and
FREEMAN, Circuit Judges
(Opinion filed: July 23, 2024)
____________
Allon Kedem [ARGUED]
Dana Or
Arnold & Porter Kaye Scholer
601 Massachusetts Avenue NW
Suite 1121
Washington, DC 20001
Counsel for Petitioner
Thomas A. Lorenzen
Crowell & Moring
1001 Pennsylvania Avenue NW
Washington, DC 20004
Counsel for Amicus Chamber of Commerce of the
United States of America
2
Kimere J. Kimball [ARGUED]
Andrew D. Knudsen [ARGUED]
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 7611
Ben Franklin Station
Washington, DC 20044
Counsel for Respondents
Robert M. Sussman, I
Sussman & Associates
3101 Garfield Street NW
Washington, DC 20008
Simi Bhat
Sarah C. Tallman
Natural Resources Defense Council
111 Sutter Street
21st Floor
San Francisco, CA 94104
Counsel for Intervenors
3
_______________
OPINION OF THE COURT
_______________
FREEMAN, Circuit Judge.
In 2022, the Environmental Protection Agency (EPA)
published a health advisory for HFPO-DA—a chemical found
in drinking water. Contending that the advisory was unlawful,
the Chemours Company petitioned for review of EPA’s action.
We will dismiss the petition for lack of subject matter
jurisdiction because the health advisory is not a final agency
action.
I
Congress enacted the Safe Drinking Water Act
(SDWA), 42 U.S.C. § 300f et seq., to protect the quality of
drinking water. To further that goal, the statute authorizes
EPA’s Administrator to take various actions against
contaminants in waters. Id. § 300g-1. One possible action is a
regulation. Id. EPA will promulgate a regulation if the
Administrator determines that: (1) the contaminant may have
an adverse effect on health; (2) there is a substantial likelihood
that the contaminant will occur in public water systems at a
frequency that presents concern; and (3) a regulation would
reduce the risk of the contaminant. Id. § 300g-1(b)(1)(A).
Before promulgating a regulation for drinking water, EPA
must undergo notice-and-comment procedures. Id. §§ 300g-
1(b)(1)(A)–(E).
4
If the Administrator determines that a contaminant need
not be regulated under the SWDA, the statute permits the
agency to take a different action: publish a health advisory. Id.
§ 300g-1(b)(1)(F). The SDWA states that health advisories
“are not regulations.” Id. EPA describes health advisories as
nonbinding documents that primarily serve to “provide
information” about a safe level of a contaminant so that
government officials and managers of public water
systems can “determine whether actions are needed to address
the presence of [the] contaminant in drinking water.” JA 12.
When EPA develops a health advisory, it takes three
categories of information into account: (1) a toxicity
assessment, (2) exposure factors, and (3) the relative source
contribution. 1 A toxicity assessment is a scientific and
technical report that evaluates the health hazards the
contaminant poses. The assessment calculates the
contaminant’s “chronic reference dose”—the estimated
amount of the contaminant to which humans can be exposed
per day “without an appreciable risk of deleterious effects
during a lifetime.” JA 574. Toxicity assessments undergo peer
review and public comment before they are finalized and
incorporated into health advisories.
Exposure factors are factors related to human activities,
behaviors, and characteristics that help determine drinking
water intake and an individual’s exposure to a contaminant.
1
EPA, Drinking Water Health Advisory: Hexafluoropropylene
Oxide (HFPO) Dimer Acid (CASRN 13252-13-6) and HFPO
Dimer Acid Ammonium Salt (CASRN 62037-80-3), vii–viii
(June 2022), https://perma.cc/379X-Q3G3; see also JA 9–10.
5
EPA estimates the drinking water intake for both the general
population and sensitive populations so that the health advisory
is “the most health protective.” JA 28.
The relative source contribution addresses where the
contaminant exists other than in drinking water. It is calculated
so the health advisory’s recommended safe level of the
contaminant in drinking water, when combined with other
identified sources of the contaminant, will not result in unsafe
lifetime exposure.
With the final toxicity assessment, exposure factors, and
relative source contribution in hand, EPA may publish a health
advisory to inform decisionmakers of what it deems is a safe
level of the contaminant in drinking water.
II
The Chemours Company uses Hexafluoropropylene
Oxide Dimer Acid and its ammonium salt (collectively, HFPO-
DA) to manufacture polymers. EPA has detected HFPO-DA
in surface water, groundwater, rainwater, and drinking water,
and it has identified polymer manufacturers as a potential
source.
In 2018, EPA began the process of developing a health
advisory for HFPO-DA. By October 2021, it had developed
and published a final toxicity assessment for HFPO-DA, which
calculated a chronic reference dose of 0.00008 milligrams per
kilogram of body weight per day. EPA estimated that the
drinking water intake for lactating women—the group it
determined was most sensitive to HFPO-DA—was 0.0469
liters per kilogram of body weight per day. EPA also estimated
that 20% of individuals’ exposure to HFPO-DA comes from
6
drinking water, with the remaining 80% coming from other
sources. Using these three pieces of information, EPA issued
a health advisory for HFPO-DA in June 2022. It concluded
that HFPO-DA would not lead to adverse human health effects
over a lifetime if the concentration in drinking water remained
at or below 10 nanograms per liter. 2
In July 2022, Chemours petitioned us for review of the
HFPO-DA health advisory. It invoked the section of the
SDWA that allows petitions for review of “any . . . final action
of the Administrator under this chapter.” 42 U.S.C. § 300j-
7(a)(2). Chemours argues that the health advisory violates
both the procedural and substantive requirements of the
Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.,
and the nondelegation doctrine.
III
Our discussion of this matter begins and ends with
jurisdiction. The SDWA confers jurisdiction upon certain
Courts of Appeals to review certain agency actions. 42 U.S.C.
§ 300j-7(a)(2); see W.R. Grace & Co. v. EPA, 261 F.3d 330,
338 (3d Cir. 2001); City of Portland v. EPA, 507 F.3d 706, 710
2
In March 2023, EPA issued advanced notice of proposed
rulemaking for HFPO-DA. 88 Fed. Reg. 18638 (Mar. 29,
2023). It published a regulation for HFPO-DA on April 26,
2024. 40 C.F.R. § 141 et seq. When Chemours filed this
petition, however, EPA had not yet promulgated the regulation.
See W. Union Tel. Co. v. FCC, 773 F.2d 375, 378 (D.C. Cir.
1985) (“[A] challenge to now-final agency action that was filed
before it became final must be dismissed.”).
7
(D.C. Cir. 2007). The type of agency action is key. The statute
states:
A petition for review of—
(1) actions pertaining to the
establishment of national primary
drinking water regulations . . . may
be filed only in the United States
Court of Appeals for the District of
Columbia circuit; and
(2) any other final action of the
Administrator under this chapter may
be filed in the circuit in which the
petitioner resides or transacts
business which is directly affected by
the action.
42 U.S.C. § 300j-7(a) (emphases added). 3
3
Because we view the finality requirement as jurisdictional,
see W.R. Grace & Co., 261 F.3d at 338, and we are free “to
choose among threshold grounds for denying audience to a
case on the merits,” Ruhrgas AG. v. Marathon Oil Co., 526
U.S. 574, 584 (1999), we need not address the other
jurisdictional issue raised in this matter: whether Chemours has
standing. Additionally, because we decide this case on
jurisdictional grounds, the Supreme Court’s recent decision in
Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024),
does not affect our analysis.
8
Chemours does not contend that the HFPO-DA health
advisory pertains to a drinking water regulation, as required for
a petition pursuant to § 300j-7(a)(1). Instead, it asserts that we
have jurisdiction under § 300j-7(a)(2) because, in its view, the
health advisory is a “final action of the [EPA] Administrator.”
Id. § 300j-7(a)(2). 4 We disagree.
Two conditions must be satisfied for an agency action
to be “final.” 5 First, the action must “mark the consummation
of the agency’s decisionmaking process—it must not be of a
merely tentative or interlocutory nature.” Bennett v. Spear,
520 U.S. 154, 177–78 (1997) (cleaned up). Second, “the action
must be one by which rights or obligations have been
determined, or from which legal consequences will flow.” Id.
at 178 (cleaned up); U.S. Army Corps of Eng’rs v. Hawkes Co.,
4
Chemours asserts (and EPA does not contest) that venue
would be proper in this Circuit because Chemours is
headquartered in Delaware and has facilities in New Jersey that
are affected by the health advisory.
5
Although the Supreme Court has said these two requirements
“generally” apply, U.S. Army Corps of Eng’rs v. Hawkes Co.,
578 U.S. 590, 597 (2016); Bennett v. Spear, 520 U.S. 154, 177
(1997), it has not recognized any exceptions to that general
rule. One exception may be when Congress deems an agency
action to be final. See, e.g., 20 U.S.C. § 107d-2 (providing that
decisions of arbitration panels convened pursuant to the
Randolph-Sheppard Act are “subject to appeal and review as a
final agency action for purposes of [the APA]”). Here,
however, there is no reason to depart from the general rule.
9
578 U.S. 590, 597 (2016) (citing Bennett’s two-prong test
approvingly). 6
We need not address Bennett’s first requirement
because the HFPO-DA health advisory fails to satisfy the
6
In some matters, in addition to addressing the Bennett test, we
have reviewed five factors to determine whether an agency
action is final. See, e.g., Ocean Cnty. Landfill Corp. v. EPA,
631 F.3d 652, 655 (3d Cir. 2011). But see Del. Riverkeeper
Network v. Sec’y of Pa. Dep’t of Env’t Prot., 870 F.3d 171,
176–78 (3d Cir. 2017) (considering only the Bennett test).
Those factors are:
1) whether the decision represents the agency’s
definitive position on the question; 2) whether
the decision has the status of law with the
expectation of immediate compliance; 3)
whether the decision has immediate impact on
the day-to-day operations of the party seeking
review; 4) whether the decision involves a pure
question of law that does not require further
factual development; and 5) whether immediate
judicial review would speed enforcement of the
relevant act.
Ocean Cnty. Landfill Corp., 631 F.3d at 655 (quoting Univ. of
Med. & Dentistry of N.J. v. Corrigan, 347 F.3d 57, 69 n.7 (3d
Cir. 2003)). The first two factors mirror the Bennett test, and
the remaining factors arise from pre-Bennett authority. See
Solar Turbines Inc. v. Seif, 879 F.2d 1073, 1080 (3d Cir. 1989).
The parties do not argue that they are relevant here, so we do
not address them.
10
second: it does not alter any party’s rights or obligations. The
health advisory provides guidance, but it imposes no
obligations, prohibitions, or restrictions. See Cal. Cmtys.
Against Toxics v. EPA, 934 F.3d 627, 637 (D.C. Cir. 2019).
The health advisory also does not give rise to any “direct
and appreciable legal consequences.” Bennett, 520 U.S. at
178. Congress foreclosed the possibility of direct legal
consequences when it stated that “health advisories . . . are not
regulations[].” 42 U.S.C. § 300g-1(b)(1)(F); see Flue-Cured
Tobacco Coop. Stabilization Corp. v. EPA, 313 F.3d 852, 862
(4th Cir. 2002) (holding that an agency report was not final in
part because the authorizing statute disclaimed any regulatory
effect). And EPA characterizes the health advisory as a “non-
enforceable, non-regulatory” informational document. JA 12.
That characterization is consistent with the health advisory’s
content. See New Jersey v. U.S. Nuclear Regul. Comm’n, 526
F.3d 98, 102 (3d Cir. 2008) (giving weight to an agency’s
characterization of its action in a finality analysis). Indeed, the
health advisory establishes no direct consequence for parties
who choose to disregard EPA’s advice about safe HFPO-DA
levels in drinking water. EPA cannot enforce the health
advisory, and there is no separate enforcement mechanism.
See Hawkes, 578 U.S. at 599–600 (stating that agency actions
are final where enforcement proceedings carry the risk of civil
or criminal penalties).
Chemours resists this conclusion, arguing that EPA,
Congress, and some states may rely on the HFPO-DA health
advisory’s guidance to exercise power. But the consequences
Chemours invokes are not direct consequences of the health
advisory. In each of Chemours’s examples, EPA or a separate
actor must take an additional action to create any consequence.
11
For instance, Chemours points to the SDWA provision
that authorizes EPA’s Administrator to take emergency actions
when a contaminant in drinking water presents an imminent
danger to public health. 42 U.S.C. § 300i. Permissible
emergency actions include issuing orders to provide alternative
water supplies and commencing civil actions, and
noncompliance with an emergency order may lead to a
monetary fine. Id. EPA’s Administrator could take emergency
action if HFPO-DA exceeds the health advisory level. 7 But it
is the emergency action itself—not the health advisory—that
would bring about direct legal consequences. Cf. Dalton v.
Specter, 511 U.S. 462, 469 (1994) (holding that reports
submitted by the Secretary of Defense to the President were
not final agency actions because the reports did not directly
affect military bases—the President’s approval of the reports
did); Hindes v. F.D.I.C., 137 F.3d 148, 162–63 (3d Cir. 1998)
(holding that FDIC’s letter to a bank warning it of a violation
that may result in closure was not a final action in part because
the letter did not close the bank—the state, relying on the letter,
did).
Chemours also argues that the HFPO-DA health
advisory imposes legal consequences under a separate federal
statute: the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), 42 U.S.C.
7
See EPA Memorandum, Updated Guidance on Emergency
Authority under Section 1431 of the Safe Drinking Water Act,
9–10 (May 30, 2018), https://perma.cc/EJ7G-3GSW (stating
that EPA may use its emergency authority in the case of
“exposure, or threat of exposure, to chronic contaminants at
levels exceeding their . . . health advisory levels”).
12
§ 9601 et seq. CERCLA governs how authorities may respond
to releases of hazardous substances into the environment. Id.
§§ 9604(a), (d). It permits authorities to require the party who
introduced the hazardous substance to clean it up using
governmental standards applicable to the particular substance.
Id. § 9621(d)(2)(A); 40 C.F.R. §§ 300.400(g)(1), (4). So if too
much HFPO-DA were to infiltrate a water system and
Chemours were deemed responsible, Chemours could be
required to reduce the HFPO-DA level to below the
recommended level in the HFPO-DA health advisory. See 40
C.F.R. § 300.400(g)(3).
According to Chemours, CERCLA makes the HFPO-
DA health advisory legally binding. But nothing in CERCLA
(or its implementing regulations) requires authorities to
incorporate the HFPO-DA health advisory in their hazardous
substance clean-up plans. Id. (providing that “agencies may,
as appropriate, identify other advisories, criteria, or guidance
to be considered . . . in developing CERCLA remedies.”
(emphasis added)); see also Sierra Club v. EPA, 955 F.3d 56,
64 (D.C. Cir. 2020) (finding guidance not final where it
“preserve[d] state discretion”). So any legal consequences that
result from an agency’s actions under CERCLA flow from
those actions, not from the health advisory itself. Cf. Hindes,
137 F.3d at 163 (“[W]here a state actor relies upon a federal
agency’s notice, the state action does not convert the notice
into a final agency act . . . .”).
Finally, Chemours argues that legal consequences flow
from the HFPO-DA health advisory when states incorporate it
into their programs and regulations. For instance, Utah
incorporates the health advisory into its Underground Injection
Control (UIC) program—an initiative administered under the
SDWA to regulate waste being injected into underground
13
sources of drinking water. 8 According to Chemours, because
a party who violates Utah’s UIC program faces enforcement
action, legal consequences flow from the health advisory. But
as with independent actions under CERCLA, Utah
independently incorporated the HFPO-DA health advisory
level into its UIC requirements. Any legal consequences
flowing from Utah’s UIC requirements are therefore not direct
consequences of the HFPO-DA health advisory. Hindes, 137
F.3d at 162–63.
In sum, for each of Chemours’s examples,
consequences may flow from actions taken to incorporate the
HFPO-DA health advisory, but they cannot flow directly from
the health advisory itself. EPA issued the health advisory to
“help communities make informed decisions about [HFPO-
DA] to better protect human health.” JA 12. Repercussions
that result do not convert the health advisory into a final action.
See Hindes, 137 F.3d at 162–63; Parsons v. U.S. Dep’t of Just.,
878 F.3d 162, 168 (6th Cir. 2017). And although the health
advisory may persuade some decisionmakers to act, that does
not make it a final agency action, either. See Flue-Cured
8
EPA, Underground Injection Control Program (April 2020),
https://perma.cc/U4RN-MWY2. States administer UIC
programs and have primary enforcement responsibility for
underground water sources. 42 U.S.C. § 300h-1. Where states
do not commence appropriate enforcement action against
individuals who violate UIC requirements, EPA has authority
to require compliance and initiate civil actions. Id. § 300h-
2(a)(2). Utah requires that parties who seek a UIC permit meet
certain standards, including those outlined in EPA health
advisories. U.A.C. R317-7-6.5.
14
Tobacco Coop. Stabilization Corp., 313 F.3d at 859–60
(observing that, in Franklin v. Massachusetts, 505 U.S. 788,
790 (1992) and Dalton, 511 U.S. at 466, “the persuasive value
and practical barriers associated with the agencies’
recommendations were insufficient to create reviewable
agency action under the APA”). 9
* * *
Because the HFPO-DA health advisory is not a final
agency action, we will dismiss the petition for lack of
jurisdiction.
9
As a final plea for reviewability, Chemours argues in its reply
brief that the health advisory need not be self-executing to be
challengeable. It cites Sackett v. EPA for the proposition that
“the APA provides for judicial review of all final agency
actions, not just those that impose a self-executing sanction.”
566 U.S. 120, 129 (2012). But Sackett involved an EPA
compliance order that imposed upon the challengers “the legal
obligation” to restore the wetlands on their property and to
provide EPA with access to those wetlands and documents
related to the wetlands’ condition. Id. at 126. Unlike the
HFPO-DA health advisory, the compliance order in Sackett
determined a party’s obligations, thus satisfying Bennett’s
second finality requirement. Id. (citing Bennett, 520 U.S. at
178). The compliance order also satisfied Bennett’s first
requirement that it “mark[] the consummation of the Agency’s
decisionmaking process.” Id. at 127 (cleaned up). Given this,
finality was established regardless of whether the compliance
order was self-executing. Id. at 129.
15