US court blocks EPA order to eliminate PFAS in plastic containers
The 5th US Circuit Court of Appeals on
March 21 ruled that the
EPA exceeded its statutory authority when it issued orders to
Texas-based Inhance in December prohibiting the company from manufacturing or
processing PFAS through its fluorination process for containers.
The EPA move came after the agency determined that types
of PFAS created during the fluorination process “are highly toxic and present
unreasonable risks that cannot be prevented other than through prohibition of
manufacture.”
The agency issued the orders under the Toxic Substances
Control Act (TSCA), which authorizes the EPA to regulate and screen chemicals
produced or imported into the US.
But Inhance challenged the EPA’s action, arguing that the
EPA improperly sought to take action against the company under a section of
TSCA dealing with new uses of chemicals, and that Inhance’s process did not
constitute a new use.
The court agreed that the fluorination technique Inhance
uses to prevent liquids from leaking out of its plastic containers – a process
that creates PFAS chemicals – does not count as a significant new use since
Inhance has been using this process since 1983.
The EPA’s interpretation of the law “distorts TSCA’s
framework and defies common sense,” the court opinion states. The agency could
pursue action against Inhance under a different section of TSCA, but would be
required to conduct a cost-benefit analysis of the action, the court stated.
When asked for comment, the EPA said it is reviewing the court’s decision.
Inhance in a statement called
the court’s decision a “decisive victory” and said that it would avert
disruption to “downstream industries” and related supply chain impacts.
The company’s continued use of its PFAS-producing
fluorination technique for high-density polyethylene (HDPE) containers is
“unconscionable” given that there are safe alternatives, said Kyla Bennett,
director of science policy for the watchdog group Public Employees for
Environmental Responsibility (PEER).
“I suspect there will be liability lawsuits coming,” she
said. “When you have this much PFAS – especially PFOA [perfluorooctanoic acid]
– leaching into products, someone is going to sue.”
In February, PEER and the Center for Environmental Health
(CEH) filed a lawsuit against the EPA claiming
that the agency violated TSCA by refusing to provide health and safety data
about PFAS chemicals in Inhance’s plastic containers, with the EPA citing
“confidential business information.”
There are thousands of PFAS chemicals, which do not break
down naturally and contaminate waterways across the US and most Americans’
blood. Studies in both laboratory animals and humans suggest that exposure to
some PFAS chemicals can harm various organs and systems
in the human body, including the heart, liver, kidneys, and immune
system, according to the EPA.
Previous research has demonstrated that PFAS can leach
from containers, including a 2023 study by Notre
Dame University, which found PFAS in ketchup and mayonnaise, and a 2022 study by the
EPA that found eight PFAS chemicals leaching from the walls of shipping
containers into their liquid contents.
The mosquito control company Clarke Mosquito has switched
to using containers with a non-fluorinated barrier protection for its
pesticide. The EPA reviewed the move in
2021 and determined that the company chose acceptable substitutes.
