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By Shannon Kelleher
A U.S. appeals court has vacated an action by the U.S. Environmental Protection Agency (EPA) ordering a company to stop producing plastic containers that leach toxic per- and polyfluoroalkyl substances (PFAS) into pesticides, household cleaners, condiments and many other products.
The 5th U.S. 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 U.S.
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 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 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 U.S. 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.
Originally published by The New Lede.
Shannon Kelleher is a reporter for The New Lede.
