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May 23, 2024

PEER and CEH File NOI to Sue EPA to Stop Manufacture and Distribution of PFAS in Fluorinated Containers

Lynn L. Bergeson Carla N. Hutton

On May 20, 2024, the Public Employees for Environmental Responsibility (PEER) announced that on May 17, 2024, they filed a notice of intent to sue (NOI) the U.S. Environmental Protection Agency (EPA) “to stop the manufacture and distribution of hundreds of millions of plastic containers with dangerous levels of a carcinogenic per-and polyfluoroalkyl substance (PFAS) called perfluorooctanoic acid (PFOA).” Filed with the Center for Environmental Health (CEH), the NOI states that EPA “has failed to perform its non-discretionary duty under section 4(f) of [the Toxic Substances Control Act (TSCA)], 15 U.S.C. § 2603(f), to initiate applicable action under section 5, 6 or 7 to prevent or reduce the risk posed by [PFOA] formed in the process of fluorinating plastic containers.” According to the NOI, this obligation arose within 180 days of EPA’s proposed National Primary Drinking Water Regulation (NPDWR) for PFOA and five other PFAS, issued on March 29, 2023, which states: “Following a systematic review of available human epidemiological and animal toxicity studies, EPA has determined that PFOA … [is] likely to cause cancer (e.g., kidney and liver cancer) and that there is no dose below which … [it] is considered safe.” The NOI notes that by March 29, 2023, EPA had also received comprehensive data demonstrating that the fluorination process used by Inhance Technologies LLC (Inhance) produced PFOA at levels of concern in up to 200 million plastic containers annually and that the fluorination “was causing PFOA contamination of pesticides, fuels, and a variety of other products extensively used by workers and consumers, resulting in widespread human exposure and environmental release.” The NOI asks 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.