The Public Employees for Environmental Responsibility (PEER) announced on April 11, 2024, that a coalition of public health groups filed a petition under Section 21 of the Toxic Substances Control Act (TSCA) seeking to stop immediately 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.” The petition “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 EPA to use its TSCA Section 6 authority to prohibit immediately the production of three toxic long-chain PFAS — perfluorooctanoic acid (PFOA), perfluorononanoic acid (PFNA), and perfluorodecanoic acid (PFDA) –during this fluorination process.

As reported in our March 25, 2024, memorandum, on March 21, 2024, the U.S. Court of Appeals for the Fifth Circuit vacated EPA’s December 2023 orders prohibiting Inhance Technologies, L.L.C. (Inhance) from manufacturing or processing PFAS during its fluorination process. The court notes that in March 2022, EPA “charged for the first time” that Inhance’s fluorination process was subject to the significant new use rule (SNUR) regarding long-chain perfluoroalkyl carboxylate chemical substances. The court states that “[b]ecause the EPA exceeded its statutory authority in doing so, we vacate the orders.”

PEER notes that the court recognized that EPA has the power to regulate the fluorination process that creates 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.’” This is the action that the petitioners seek.

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