EPA ban on HDPE coatings faces court challenge; debate on alternatives heats up

A federal appellate court has agreed to hear an expedited review of coating maker Inhance Technologies L.L.C.'s challenge to an EPA order it says would shut down its 11 plastic bottle fluorination factories.

The Dec. 12 decision from the Fifth Circuit Court of Appeals in New Orleans also grants an administrative stay temporarily blocking the Environmental Protection Agency's Dec. 1 order while the court review is ongoing. The court has tentatively set oral arguments for the week of Feb. 5.

The EPA order and legal fight have also stepped up debate over the viability of alternatives to Inhance's fluorination coating process for high density polyethylene containers, as well as the impacts on supply chains.

The EPA order says that the company's coating process creates highly toxic fluorinated per- and polyfluoroalkyl substances that can leak from the bottles and potentially contaminate drinking water.

The agency argues that the only effective remedy is to halt manufacturing until Inhance can redesign its operations to stop the PFAS compounds from being created in manufacturing.

But Inhance argues that EPA has exceeded its regulatory authority, it questions the scientific basis for the decision, and it says that halting production would disrupt downstream supply chains in agriculture, vaccine transportation, fuel additives and other industries.

"Suitable replacement technology is not available for myriad applications, and in addition, current container inventories are low due to broad supply chain destocking that has occurred over the last 18 months," Inhance said.

It estimates the EPA order would impact 100,000 jobs in various supply chains and cause $40 billion in economic losses.

Companies making competitive, nonfluorinated barrier technologies, however, say that safer alternatives are available and scalable.

"Contrary to the opinions voiced regarding the EPA order, U.S. industry does have viable alternatives besides fluorination for HDPE packaging that are PFAS free, readily available, and economical," according to a statement from BP Polymers LLC, a Charlotte, N.C.-based firm that makes a polyamide-based additive that can be incorporated within an HDPE container.

"BP Polymers already has an active presence within the marketplace, and we are primed for large-scale, industrial growth with the capacity for millions of pounds of production," it said in a Dec. 12 statement. "The toxic persistent, and bio- accumulative effects of PFAS contamination even at extremely low levels of detection is irrefutable."

BP Polymers said EPA risk assessments show "real concerns" that PFAS compounds can persist in recycled resins made from fluorinated HDPE containers, but said its technology eliminates those contamination worries.

In the wake of the EPA order, companies that use the BP Polymers barrier technology, including blow molders CKS Packaging Inc. and Altium Packaging LLC, have taken to social media touting alternatives to fluorination, including other barrier coatings, extruded PET packaging and multilayer packaging.

For example, BP said its technology was used as a substitute barrier layer in packaging for mosquito pesticides, after PFAS contamination of drinking water in a Massachusetts town in 2019 was traced to fluorinated HDPE mosquitocide packaging.

BP said its technology can be used in packaging for a range of industries, including cosmetics, pharmaceuticals, solvents and industrial chemicals.

In its Dec. 1 announcement, EPA said safe alternatives are available but did not offer details.

Inhance, in several statements since EPA's order, predicted significant disruption in supply chains if the decision moved ahead. It called its technology vital to protecting people and the environment.

"With a cessation of this technology, we anticipate significant and near immediate disruption across the supply chains of crop production, vaccine transportation, outdoor power equipment, fuel additives, as well as many other industries," Inhance said.

It said fluorination coating technology remains a specialized application, used in less than 0.2 percent of the 15 billion pounds of PE packaging produced each year in the United States.

As well, Inhance said its barrier technology keeps 25,000 tons of other chemicals from permeating through packaging into the environment.

It said it was asking the court to halt the "one-sided" EPA order because the agency's decision would effectively force it to shut down its 11 manufacturing plants, and it questioned EPA's interpretation of regulations over its 40-year-old technology.

"The EPA decision to ban the fluorination of plastics defies sound science, data-driven risk assessment, and is a significant departure from past and current policies and practices," Inhance said.

It said it had been working with EPA to reduce PFAS emissions from its coating processes, and it said the PFAS chemicals at issue are incidental byproducts of its manufacturing.

But EPA in March 2022 cited the company for violating a new regulation it released in 2020, saying the company had failed to notify it of PFAS in its manufacturing.

The agency also sued Inhance last year, alleging that its coating process was a risk to environmental contamination. It said very small levels of contamination present a risk, given the toxicity and persistence of the chemicals.

"PFAS should not be in plastic containers people use every day, period," said Michal Freedhoff, EPA's assistant administrator for the Office of Chemical Safety and Pollution Prevention, in a statement.

Before the court stay, the EPA order would have taken effect Feb. 28.