PFAS Fluorinated Container Citizens’ Suit Dismissed Without Prejudice
Groups Plan Intervention in EPA Lawsuit Against Inhance Technologies
Washington, DC — A federal judge in the District of Columbia has dismissed a citizen suit to restrain production of unsafe PFAS in violation of federal law by a Texas company “fluorinating” millions of plastic containers widely used by the public. The dismissal was on the grounds that the U.S. Environmental Protection Agency (EPA) was already “diligently prosecuting” the matter in a separate case. The court did, however, allow Public Employees for Environmental Responsibility (PEER) and the Center for Environmental Health (CEH) to refile their suit against the company if EPA does not follow through in stopping its ongoing violations of the Toxic Substances Control Act (TSCA).
PEER and CEH will now move to intervene in the Department of Justice’s lawsuit against Inhance Technologies, based in Houston, Texas, in the United States District Court for the Eastern District of Pennsylvania.
The groups’ citizen suit, filed late last year, was based upon EPA and independent peer-reviewed studies showing that the Inhance fluorination process to strengthen the lining of these containers creates numerous per- and polyfluoroalkyl substances (aka PFAS or “forever chemicals”) prohibited by an EPA significant new use rule (SNUR) under TSCA. PFAS are a class of toxic chemicals that has prompted alarm around the globe because of its persistence and known serious harmful effects.
Even more alarming are findings of these studies showing that PFAS from the linings of these containers leach into their contents. These containers are used for food, personal care products, automotive and art supplies, as well as many other common consumer products like household cleaners. They are also used for products not sold directly to consumers, ranging from pesticides to industrial solvents, fuels and lubricants.
EPA has known about these violations for over two years but did not act until the groups filed a 60-day Notice of Intent to Sue under TSCA in October 2022. Nearly two months later, the Department of Justice, acting on EPA’s behalf, filed its own suit against Inhance. PEER and CEH filed their case 8 days later, as soon as the law allowed.
Inhance used EPA’s action as the basis for a motion to dismiss the citizen suit on the grounds that EPA was already “diligently prosecuting” the issue. Surprisingly, EPA filed its own brief supporting the polluter in seeking to dismiss the citizen suit.
“We are appalled that EPA is siding in court with the polluter it claims to be prosecuting,” stated PEER Executive Director Tim Whitehouse, a former EPA enforcement attorney. “More disappointing is that EPA has ignored this major public health threat for over two years and even now is not seeking immediate action to eliminate the presence of PFAS in millions of fluorinated plastic containers in violation of TSCA.”
Notably, EPA argued in its brief that it was not yet seeking to directly stop Inhance’s willful TSCA violations because it needed the company’s help, through civil discovery, in determining whether those violations were harming public health.
“This case presents a critical test of whether EPA will adhere to its commitment to stop the buildup of PFAS in people and the environment when, as in this case, the harm to public health is serious and fully documented by EPA’s own studies,” said Bob Sussman, attorney for CEH and former senior EPA official. “ While our case in the District of Columbia will not go forward for now, we are committed to continue the fight in Pennsylvania district court to ensure Inhance complies with federal requirements that provide important protections to the public against the manufacture of dangerous PFAS.”