US Environmental Protection Agency faces lawsuit over PFAS negligence
24 May 2024 --- Civil society groups in the US are launching a lawsuit against the country’s Environmental Protection Agency (EPA) for failing its duty to prevent the production of hundreds of millions of plastic packaging pieces containing dangerous levels of PFAS.
The case centers on Texas-based Inhance Technologies, a company using a novel fluorination process which blasts plastic containers with fluorine gas in an oxygen-free chamber. This method creates barrier properties for high-density PE (HDPE), which the company says “prevents permeation of contents through the packaging to the environment and preserves the quality of the product in the packaging.”
However, the EPA was alerted to the presence of PFAS chemicals emerging through this process since March 29, 2023, according to plaintiffs. This meant the EPA was obliged to take action within 180 days — before September 25, 2023.
Tens of millions of fluorinated HDPE containers have been filled and distributed to consumers and businesses, according to Bob Sussman, attorney for the Center for Environmental Health (CEH). The containers are marketed for storing many types of products, including agrochemicals, disinfectants, cleaning products and food additives.
“Our goal in bringing this lawsuit is to stop the formation of PFAS during fluorination, which is a violation of the law, but even more than that is a significant public health issue,” Sussman says.
Inhance Technologies produces millions of tons of plastics per year.Innova Market Insights pegged “Honest Packaging” and “Breakthrough Barriers” as two of its top trends for 2024, noting that litigation against companies and organizations over their environmental actions is growing and that the development of harmless barrier coating technologies is more in demand than ever.
Inhance Technologies
Inhance Technologies fluorinates an estimated 200 million containers per year, according to the plaintiffs, which are used for a wide array of products, such as cleaning products, chemicals, pesticides, personal care products and fuels, as well as edible oils and flavorings. Alternative barrier technologies are available that do not create PFAS, they note.
“To our knowledge, no other chemical currently produced in the US has a maximum contaminant level goal of zero, is a Group 1 carcinogen, is present in virtually all Americans’ blood, is persistent and bioaccumulative, has been found in food, water, soil and house dust, and is widely distributed in and released from tens of millions of products packaged in fluorinated containers,” reads the Notice of Intent to Sue.
The notice also details how the EPA has already concluded that perfluorooctanoic acid (PFOA) — a type of PFAS — is a human carcinogen with no safe level of ingestion and that it is present in the blood of 98% of US residents. The EPA has also detailed how Inhance’s fluorination process creates high levels of PFOA that adhere to the plastic containers and leach into the products in those containers.
“The presence of carcinogenic PFOA in tens of millions of plastic containers will cause serious and widespread harm to humans,” declares PEER science policy director Kyla Bennett, a scientist and attorney formerly with EPA.
Taking further legal action
Despite the EPA finding high PFAS levels in Inhance Technologies’ products, in March this year, the US Court of Appeals for the 5th Circuit vacated the EPA’s order to prohibit further production, finding that the EPA relied on the wrong section of the Toxic Substances Control Act (TSCA).
EPA declined to appeal that ruling and failed to take any other action to enforce its finding of unreasonable risk, according to the notice.
Bob Sussman remarks that: “Congress included section 4 in TSCA to assure that EPA responds quickly and effectively to data showing serious or widespread risks to public health. EPA cannot simply walk away from the dire health threat of PFOA in plastic containers because of the 5th Circuit decision but is obligated by section 4 to address that threat under its other authorities.”
Inhance Technologies issued a statement following the 5th Circuit decision, with Andrew Thompson, the company’s president and CEO, saying: “We are very excited to continue to service our customers with our excellent team and technologies, which keep thousands of tons of harmful chemicals and fuels out of the environment, preserve product quality and ensure compliance with many global regulations — all in a recyclable container.”
The company produces an estimated 11 million kg of plastic annually.
By Louis Gore-Langton
