EPA to try again to regulate fluorination coating after court defeat

The Environmental Protection Agency is telling environmentalists it will start a rulemaking that could limit fluorination of plastic containers, making another attempt at regulating the coating technology after a federal court in March blocked its earlier attempt.

EPA told Earthjustice and other groups in a July 10 letter that it was accepting a petition they made in April that asked the agency to use the Toxic Substances Control Act to ban a coating process for high density polyethylene containers that EPA says releases toxic PFAS chemicals into the environment.

In the letter, EPA said it also wanted to know about alternative manufacturing technologies that didn't use a fluorination coating process.

The EPA letter comes after the agency in March lost an attempt to limit Houston-based Inhance Coating Technologies LLC's fluorination process for coating HDPE containers.

Three judges on the U.S. Court of Appeals for the Fifth Circuit in New Orleans ruled unanimously March 21 that EPA exceeded its authority when it issued a December enforcement order against Inhance, telling the company to shut down or change its process.

The court said the EPA erred in using Section 5 of TSCA, allowing for faster action. But the environmental and public health groups asked the EPA to reopen proceedings to regulate the processes under Section 6 of TSCA.

The court's March decision did not limit the EPA from acting under Section 6.

In the July 10 letter Michal Freedhoff, EPA's assistant administrator for chemical safety and pollution prevention, said the petitioners pointed to studies from EPA and others to indicate risks from the fluorination process.

"The petition, taken together with information reasonably available to the EPA, sets forth facts establishing that it is necessary to initiate an appropriate proceeding under TSCA Section 6 to address PFOA, PFNA, and PFDA formed during the fluorination of plastic containers," Freedhoff wrote. "The petitioners submitted sufficient evidence to show that PFOA, PFNA, and PFDA formed during the fluorination of plastic containers presents risk of concern."

Freedhoff's letter said that when EPA begins its more formal rulemaking, it will ask interested parties for information on the number, location and uses of fluorinated containers in the U.S., along with alternatives to fluorination and what could be done to address risks from the three PFAS compounds leaching into the environment or into products.

The letter said that EPA's acceptance of the petition does not signal that will make any particular final decision.

In a July 11 statement, Earthjustice and other groups welcomed the EPA letter.

"Today marks another important step to protecting public health from harmful PFAS," said Earthjustice Attorney Kelly Lester.

"EPA has recognized the unreasonable risks posed by PFAS produced during plastic fluorination, and its commitment to pursue needed regulation of these toxic substances is a step forward," Lester said. "EPA must now act swiftly to regulate these PFAS and protect communities from the devastating health harms associated with PFAS exposure."

A separate coalition of public health organizations that had threatened to sue EPA to force action against Inhance had a mixed reaction to the EPA letter and said they were examining their options.

"We're concerned that, while EPA granted the petition, it did not commit to a specific plan of action for restricting PFAS production during fluorination or a specific timeline for next steps," said Bob Sussman, a lawyer with the Center for Environmental Health and a former senior EPA official. "With respect to the notice of intent, we're examining our legal options in light of EPA's petition response."

Inhance said in a July 12 statement that it welcomed the EPA review under Section 6 and said any PFAS compounds released in the process are impurities and present in minute quantities.

"Nothing in EPA's announcement indicates that the agency has made a decision to ban or restrict the fluorination of plastic containers or the sale or use of such containers," Inhance said. "Inhance is confident that any further evaluation of the potential risk associated with these compounds by EPA will conclude that there is no unreasonable risk associated with the use of fluorinated containers."

It said fluorinated containers are less resource intensive to manufacture and have a lower carbon footprint than other barrier technologies, and said the fluorinated barriers prevent exposure to volatile chemicals stored in the containers.

Inhance called the allegations from the environmental groups "baseless" and said that any of the PFAS compounds present are not intentionally part of the manufacturing process and are "only formed as impurities at minute concentrations."

"The total annual volume of PFAS compounds unintentionally formed by fluorination processes is minuscule compared to other sources of these PFAS," Inhance said.

But a competitor that makes non-fluorinated coating technology, Charlotteville, Va.-based BP Polymers LLC, said the U.S. industry has "viable alternatives" to fluorination for keeping pesticides and other volatile chemicals from leaching out of plastic containers.

In a July 16 reaction to the EPA announcement, BP said it is "primed for large-scale, industrial growth with the capacity for millions of pounds of production."

BP said it welcomed the EPA's July 10 letter that it was opening a new regulatory proceeding, and it said the EPA's Office of Pesticide Programs has determined that BP's technology does not "contribute PFAS contamination to the packaged contents."

It also pointed to an EPA risk assessment of fluorination that noted concerns about PFAS contamination of post-consumer plastic resin, and said there is "no concern" about PFAS contamination when containers with its technology are recycled.

"The toxic, persistent, and bio-accumulative effects of PFAS contamination even at extremely low levels of detection is irrefutable; and it is the right of the American people to live in a safe, PFAS-free environment," BP Polymers said.