By Dede Williams

In response to a petition filed by clean water advocacy groups, the US Environmental Protection Agency (EPA, Washington, DC; www.epa.gov) has agreed to review and take what it sees as appropriate action on issues related to the distribution and disposal of three per- and polyfluoroalkyl substances (PFAS) including perfluorooctanoic acid (PFOA), perfluorononanoic acid (PFNA), and perfluorodecanoic acid (PFD).

The NGOs that include the Center for Environmental Health, Public Employees for Environmental Responsibility, Alaska Community Action on Toxics, and Clean Cape Fear, asked that the agency move quickly to prohibit the manufacture, distribution, and disposal of the so-called “forever chemicals” formed during the fluorination of plastic containers, leveraging Section 6 of the federal Toxic Substances Control Act (TSCA). The groupings said a new ruling must take effect “as soon as practicable” in order to address the widespread risk of harm to human health, including that of workers in plastics fluorination.

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Each year, the petitioners asserted, “hundreds of millions” of plastic containers are fluorinated using a process that creates a suite of toxic PFAS, including the three named chemicals, which are considered to be highly toxic, extremely persistent in the environment, and that can bioaccumulate in the body. “With every day of delay, additional sources of these highly toxic and persistent PFAS will enter the stream of commerce and continue to expose people and the environment.”

At the centre of the petition is the post-mould fluorination process that the EPA in an earlier investigation found could generate PFAS. Other fluorination processes not addressed in the previous risk assessment are not part of the current discussion.

Due to the regulator’s findings that the continued use of the chemicals in the fluorination of HDPE containers presents an “unreasonable risk” to the environment and can lead to cancer, and cause reproductive and developmental harm to the immune system, the NGOs said they believe the EPA is obligated to grant their petition, despite an appeals court’s rejection of the agency’s attempt last year to force a container manufacturer to change its process or shutter production. 

Leveraging Section 5 of the TSCA, in December 2023 the US environmental watchdog ordered Inhance Technologies (Houston, Texas, USA; www.inhancetechnologies.com) to halt, by the end of February 2024, its use of the three chemicals generated by the company’s manufacturing process for fluorinated HDPE containers.

This action followed a dispute between the EPA and the plastics processor over the agency’s classification of the process as a “significant new use” under the act. Insisting that the application was not new, Inhance appealed what it called a “one-sided order” that would force it to shutter its 11 barrier technology facilities across the US.

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Though the business-friendly US Court of Appeals for the Fifth Circuit in New Orleans agreed with Inhance that the EPA’s order was unlawful because, among other things, the company’s fluorination process was not a significantly new use and thus could not be regulated under TSCA Section 5,  it declined to rule on the EPA’s authority to determine the risk of a chemical and added that it could “properly proceed” to regulate the process under Section 6.

By granting the NGOs’ petition, EPA said it will “promptly commence an appropriate proceeding under TSCA Section 6”. The agency added that it intends to request information, including the number, location, and uses of fluorinated containers in the US as well as  alternatives to the fluorination process that generates PFOA, PFNA, and PFDA. It also will study measures to address risk from PFOA, PFNA, and PFDA formed during the fluorination of plastic containers.

By its own account, Inhance fluorinates more than 200 mn HDPE containers annually.

In February 2024, the EPA released a new method to detect 32 PFAS directly from the walls of containers made from HDPE. This would allow industries that use HDPE containers and container manufacturers to test the products before use, preventing PFAS contamination of products stored in them.