EPA may need to relaunch lawsuit against Inhance over PFAS

Public health groups want the U.S. Environmental Protection Agency to try again to restrict fluorination of plastic containers, saying they plan to ask a federal court to compel EPA to reopen its efforts against coating maker Inhance Technologies L.L.C.

Public Employees for Environmental Responsibility (PEER) and the Center for Environmental Health (CEH) said May 20 they had filed a formal "notice of intent to sue" with EPA, threatening to go to federal court if EPA does not limit releases of PFAS chemicals from plastic containers coated by Inhance.

Their notice is a response to a federal appeals court ruling March 21 that was a victory for Inhance in its ongoing fight with EPA over its barrier coating process for high density polyethylene containers.

A unanimous three-judge panel from the U.S. Court of Appeals for the Fifth Circuit tossed out an EPA enforcement order against Inhance, ruling that the agency overreached when it told the company to shut down its coating process to control leakage of fluorinated "forever chemicals" from the containers.

At the time, Houston-based Inhance called the appeals court ruling a "decisive victory." It said in December that an EPA enforcement order could force it to consider bankruptcy for its 11 U.S. factories.

The panel, however, left open a lane for the EPA to revisit the issue, and the environmental groups want EPA to use it.

The court said EPA erred in using the Toxic Substances Control Act to declare Inhance's process a "new use" subject to quicker TSCA action. But the judges said the agency could use other TSCA provisions.

The environmental groups argue the public health risks from long-chain per- and polyfluoroalkyl substances, or PFAS, leaking from the fluorinated containers means EPA must act, even with the appeals court decision.

"EPA cannot simply walk away from the dire health threat of PFOA in plastic containers because of the 5th Circuit decision but is obligated by [TSCA] section 4(f) to address that threat under its other authorities," said Bob Sussman, an attorney for CEH and a former senior EPA official.

The PEER and CEH statement came a few weeks after they and other groups filed a related petition April 11 with EPA, asking it to create new TSCA regulations prohibiting the release of three PFAS compounds—PFOA, PFNA and PDFA—from the fluorination of plastic containers.

The petitions from the environmental groups come as EPA's next step are unclear.

On May 20, a federal judge dismissed a related case that EPA brought against Inhance in a Pennsylvania court.

EPA had asked U.S. District Judge John Murphy May 12 to dismiss the case, citing the ruling from the 5th Circuit that tossed out its Dec. 1 enforcement order against Inhance.

PEER and CEH, which filed as intervenors in that Pennsylvania case, also filed a similar notice May 17 asking Murphy to dismiss that case but said they retained the right to file a new case.

Actions from PEER and CEH in 2022 originally led EPA to file its Pennsylvania case against Inhance, in late December 2022.

Earlier in 2022, PEER and CEH had filed a "notice of intent" to sue against EPA, similar to the latest notice they filed May 20.

After EPA then filed its case in Pennsylvania, PEER and CEH also filed their own case against Inhance in federal court in Washington, D.C. But that case was later dismissed while the Pennsylvania case was pending.

Now, those groups are asking EPA to restart its actions against Inhance but this time use different parts of TSCA, either sections 6 or 7, rather than TSCA section 5 and its "new use" provisions, which the 5th Circuit blocked.

"By this notice, we therefore request that EPA take action as soon as possible under TSCA sections 6 and/or 7 requiring that Inhance immediately cease all PFOA production during fluorination of plastic containers," PEER and CEH said in their May 17 notice to sue to EPA Administrator Michael Regan. "We would be pleased to consult with EPA about the steps that must be taken in accordance with TSCA."