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July 31, 2023

Bipartisan Group of Representatives Calls on EPA to Assess the Risks of PFAS in Fluorinated Containers

Lynn L. Bergeson Carla N. Hutton

On July 25, 2023, 12 members of the House sent a letter to U.S. Environmental Protection Agency (EPA) Administrator Michael Regan urging EPA “to conduct a rigorous, comprehensive, and transparent assessment of the risks of [per- and polyfluoroalkyl substances (PFAS)] in fluorinated containers.” The letter states that EPA is mandated by the Toxic Substances Control Act (TSCA) to address the risks of new PFAS and significant new uses of existing PFAS. According to the letter, the TSCA program “is now facing a major test of this authority from the submission of nine Significant New Use Notices (SNUNs) by Inhance Technologies, a Texas company that fluorinates plastic containers.” The letter states that the Inhance fluorination process “results in the formation of at least 13 individual PFAS, nine of which are long-chain perfluoroalkyl carboxylate (LCPFAC) substances.” The letter notes that LCPFACs are subject to a 2020 significant new use rule (SNUR) promulgated by EPA and that “[‌i]t is our understanding that Inhance fluorinates over 200 million containers a year, which are used to package numerous consumer and industrial products.”
The letter asks EPA to answer the following questions before September 1, 2023:

  • How will EPA ensure that its SNUN reviews are informed by the input of leading PFAS experts in other parts of the Agency, as well as knowledgeable independent scientists?
  • Will EPA conduct an independent peer review of the Agency’s risk assessment for the SNUNs? If not, why not?
  • Will EPA’s review of the SNUNs consider only the risks of individual LCPFACs or will it recognize the combined toxicity of PFAS to which people are co-exposed from fluorinated containers, consistent with the latest science developed by the Office of Water?
  • Will EPA’s risk assessment consider the contribution to overall risk of short-chain perfluoroalkyl carboxylates formed during fluorination that raise health concerns but are not LCPFACs subject to the SNUR?
  • Although the comment deadline on the SNUNs has passed, what process will EPA provide for enabling the public to submit additional information? Additionally, will EPA meet with commenters and experts to make sure their data and analysis are fully considered by agency reviewers?
  • Is EPA expeditiously reviewing redacted portions of the SNUNs in order to maximize disclosure to the public and will EPA provide a further opportunity to comment once this information is disclosed?
  • How will the TSCA review of the SNUNs further EPA’s PFAS Strategy and the Agency’s policy of reducing and preventing exposure to PFAS wherever possible?
  • Will EPA’s review of the SNUNs consider the risks to workers and communities near fluorination facilities, including considering cumulative impacts where applicable?
  • How does EPA interpret its authority in TSCA Section 5(f) to ban significant new risks of chemicals that present unreasonable risks and what factors would go into deciding whether to ban PFAS formed during fluorination?

As reported in our April 11, 2023, blog item, Public Employees for Environmental Responsibility (PEER) and Center for Environmental Health (CEH) filed suit in the U.S. District Court for the District of Columbia to prevent Inhance from generating PFAS when fluorinating plastic containers. PEER and CEH sought a court order restraining Inhance from continued manufacture of PFAS in violation of the 2020 SNUR. While PEER and CEH filed suit on December 27, 2022, EPA filed suit on December 19, 2022, in the U.S. District Court for the Eastern District of Pennsylvania. Inhance filed a motion to dismiss the case brought by PEER and CEH, “arguing that the TSCA’s diligent-prosecution bar requires dismissal of this separate action.” The U.S. District Court for the District of Columbia found that PEER and CEH failed to prove that the U.S. Department of Justice (DOJ) is not “diligently prosecuting” the action and granted Inhance’s motion on April 6, 2023, dismissing the case without prejudice.