FOR IMMEDIATE RELEASE
Thursday, April 11, 2024
CONTACT
Kyla Bennett [PEER] kbennett@peer.org, (508) 230-9933
Robert Sussman [CEH] bobsussman1@comcast.net, (202) 716-0118
Public Health Groups File Petition to Compel EPA to Remove PFAS Immediately from Fluorinated Plastic Containers
Citizen Petition Urges EPA to Act on Findings of Unreasonable Risk after Court Decision Wrongly Blocks EPA Orders
Washington, DC — A new petition filed today seeks to immediately stop the manufacture and distribution of hundreds of millions of plastic containers with dangerous levels of per- and polyfluoroalkyl substances (PFAS) that leach from these containers into household products and the environment.
This citizen petition by Public Employees for Environmental Responsibility (PEER), the Center for Environmental Health (CEH), and other environmental and health advocates, filed under Section 21 of the Toxic Substances Control Act (TSCA), demands that the U.S. Environmental Protection Agency (EPA) take action to implement its previous determination that the treatment of these containers with fluorine constitutes an unreasonable risk to human health and the environment. Petitioners ask the Agency to invoke its powers under Section 6 of the Toxic Substances Control Act (TSCA) and immediately prohibit the production of three toxic long-chain PFAS—PFOA, PFNA, and PFDA—during this fluorination process.
A Texas company, Inhance Technologies, LLC, fluorinates an estimated 200 million containers a year to impart barrier protection. These containers are used for a wide array of products, such as cleaning products, chemicals, pesticides, personal care products, fuel tanks as well as alcohols, edible oils, and other foodstuffs. The fluorination process is not the only way to strengthen the barriers of containers; other companies provide the same effective barrier protection without creating PFAS.
More than three years ago, PEER discovered, and EPA then confirmed, that several PFAS are present in the containers fluorinated by Inhance and leach into their contents. Over this three year period, Inhance has continued to produce PFAS, even though it was supposed to halt production based on EPA’s finding that Inhance was violating TSCA. Finally, as advocated by PEER and CEH, last December EPA found the PFAS-laden containers constituted an unreasonable risk to public health and the environment and ordered the fluorination practice halted.
Last month, the U.S. Court of Appeals for the 5th Circuit incorrectly vacated EPA’s orders on grounds that the agency had wrongly classified plastic fluorination as a “new use” under section 5 of TSCA The Court did recognize, however, that EPA has the power to regulate the fluorination process that creates these toxic PFAS under a different provision of TSCA, section 6, which directs that when EPA has determined that a chemical “presents an unreasonable risk of injury to health or the environment,” it “shall” act “to the extent necessary so that [it] no longer presents such risk.” That is the action which today’s citizen petition demands that EPA take.
“We are asking EPA to take immediate action on this petition and issue a rule that takes effect immediately,” stated PEER Science Policy Director Kyla Bennett, a scientist and attorney formerly with EPA, pointing out that there are alternative barrier protection practices for containers that do not create PFAS. “How EPA responds to this petition will tell whether the agency is serious about containing global PFAS contamination, a crisis that is urgent and increasingly difficult to address.”
In the orders vacated by the 5th Circuit, EPA found, after considering the best available science and following a comprehensive review of the relevant evidence, that the manufacturing, processing, distribution in commerce, use, or disposal of the PFAS produced during the fluorination of plastic containers poses an unreasonable risk to health or the environment. The Court did not question that finding.
“The Toxic Substances Control Act allows EPA to issue an immediately effective rule to prohibit or limit any chemical process determined to present an unreasonable risk of injury if serious or widespread injury is likely before completion of the rulemaking process,” said Bob Sussman, attorney for CEH and former senior EPA official. “EPA has all the evidence it needs to justify this action and should not allow Inhance to continue to expose Americans to dangerous PFAS one day longer than necessary.”
The citizen petition was filed today on behalf of PEER and CEH, represented by Robert Sussman, and Alaska Community Action on Toxics, Clean Cape Fear, Clean Water Action, Delaware Riverkeeper, and Merrimack Citizens for Clean Water, represented by Earthjustice.
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Revisit the 5th Circuit decision
