PFAS Observer
On September 30, 2024, the U.S. Environmental Protection Agency (EPA) issued a notice seeking comment on the manufacture of certain per- and polyfluoroalkyl substances (PFAS) during the fluorination of high-density polyethylene (HDPE), which is used to produce plastic containers used for various household consumer, commercial and industrial products. The notice marks the latest step in EPA’s attempt to regulate plastic fluorination and potential concurrent PFAS contamination under Section 6 of the Toxic Substances Control Act (TSCA).
TSCA section 6(a) provides EPA broad authority to regulate chemical substances that present an “unreasonable risk” to human health or the environment. Before imposing requirements, EPA must conduct a risk evaluation and determine that the substance does in fact present the unreasonable risk.
EPA had previously attempted to address this issue last year, when it ordered Inhance Technologies to stop its use of certain processes to manufacture fluorinated containers. EPA, and supporting environmental groups, claimed that Inhance’s process contaminated the containers with PFAS, particularly perfluorooctanoic acid (PFOA), which has been the subject of extensive litigation and regulatory activity. EPA alleged that Inhance’s process violated a significant new use rule (SNUR) for PFAS. EPA’s attempts to halt Inhance, though, ran aground last March when the U.S. Court of Appeals for the Fifth Circuit held that Inhance’s technology predated the SNUR and thus was not subject to it. This ruling allowed Inhance to continue using the process.
Changing course, environmental groups quickly petitioned EPA to establish a rule under the TSCA limiting PFAS in fluorinated plastic containers. EPA granted the petition via letter on July 11, 2024. Although EPA did not commit to establishing the rule, it agreed to promptly commence an appropriate proceeding under TSCA Section 6 and to request information on the fluorination of plastic containers.
Accordingly, EPA’s notice seeks the information necessary to start its TSCA risk evaluation process, with the ultimate potential outcome being the broad regulation of plastic fluorination under TSCA.
Notably, EPA’s notice seeks information on the availability of alternatives and on critical uses of fluorinated plastics. Such information may inform EPA’s consideration of potential exemptions from subsequent rulemaking. Companies producing fluorinated plastics may wish to consider responding to EPA’s rulemaking to explain their process, alternatives (or lack thereof) and any critical functions their products serve.
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