An Environmental Protection Agency rule limiting fluorination of plastic containers appeared to face skepticism from a federal appellate court panel on Feb. 5 as some judges questioned an EPA order against fluorination maker Inhance Technologies L.L.C.
While it's difficult to interpret how judges may rule based on their questions at oral arguments—which can often dive into nuanced legal issues—two of the three panel members at the U.S. Court of Appeals for the Fifth Circuit seemed to question the agency position.
"You get to eat your cake and have it too," said Judge Cory Wilson, when at one point he asked an EPA attorney about the agency's position in the 40-minute hearing where Inhance is challenging a Dec. 1 EPA order telling it to stop manufacturing by Feb. 28 or redesign its processes.
As well, Judge Priscilla Richman at another point questioned EPA's conclusions that the Inhance process, which it has used for several decades, should be classified as a "significant new use" under the federal Toxic Substances Control Act, and subject to tougher evaluation than if it was an ongoing use.
"This manufacturing process has been ongoing, so I'm not sure I understand your arguments," said Richman, who is the chief judge for the appeals court.
Daniel Martin, an attorney for the U.S. Department of Justice representing EPA, told the court Inhance should be regulated as a new use because the company did not come forward during the agency's rulemaking proceedings in 2020 and disclose that it was creating long-chain per- and polyfluoroalkyl substances, or PFAS, in its manufacturing.
If it had, he suggested, the agency would have considered it an ongoing use, as it did for other industries that disclosed their uses, including semiconductor manufacturing.