Inhance can continue to fluorinate plastic containers

The US Environmental Protection Agency overstepped its authority when it ordered Texas-based Inhance Technologies to stop making per- and polyfluoroalkyl substances (PFAS) as by-products of the firm’s fluorination process, a federal appeals court ruled March 21. The decision allows Inhance to continue using fluorine gas to strengthen the barrier properties of containers made from high-density polyethylene, even though the process unintentionally creates small amounts of PFAS.

The EPA confirmed in 2022 that PFAS can leach out of fluorinated containers like those treated by Inhance and into liquids, such as pesticides, that they store. The agency warned Inhance that manufacturing PFAS without notifying the EPA in advance violates what is known as a significant new use rule. The rule, which applies to certain long-chain PFAS, was finalized in 2020 under the Toxic Substances Control Act (TSCA).

Inhance says it was unaware until 2022 that its fluorination process creates PFAS impurities. In December 2022, the company submitted notices to the EPA to comply with the significant new use rule. But a year later, after reviewing the notices, the EPA ordered Inhance to stop producing PFAS through its fluorination process because three of the by-products are toxic at low levels.

Inhance immediately petitioned the US Court of Appeals for the Fifth Circuit to expedite review of the EPA’s order, claiming that shutting down its fluorination process will bankrupt the company.

Inhance says it has used the same process to fluorinate plastic containers since 1983. In its petition, it argues that the decades-old process is not a “significant new use under TSCA” because new means “having recently come into existence” or “not previously existing.”

The EPA claims that a significant new use is any use “not previously known to the EPA.” Inhance did not notify the EPA of any ongoing use of PFAS, and therefore its process qualifies as a significant new use, the agency says.

The court of appeals sided with Inhance. A new use under TSCA applies to substances “prior to their initial manufacture, not decades after a manufacturing process has been in place,” the court states.

The EPA could still regulate Inhance’s fluorination process under TSCA as an ongoing use rather than as a significant new use. Doing so would require the agency to conduct a cost-benefit analysis that weighs the negative health and environmental effects of the chemical against its benefits and that considers the economic consequences of restricting production.

In a statement, Inhance maintains that it is “compliant with all applicable regulations.” The firm also says it is “committed to continuing its significant research and development program to voluntarily implement measures to reduce the potential for unintentional PFAS impurity formation.”

Environmental groups that sued Inhance in December 2022 for failing to notify the EPA that its process creates PFAS say they are disappointed with the court of appeals ruling. “This decision leaves the millions of Americans who are exposed to these containers without protection from several PFAS that EPA has determined present a serious threat to public health,” the groups Public Employees for Environmental Responsibility and the Center for Environmental Health say in a joint statement.

The advocacy groups vow to keep fighting to stop Inhance from producing PFAS. They plan to pursue their case in the Federal District Court for the Eastern District of Pennsylvania, which they say is not bound by the court of appeals decision.