US Appeals Court Vacates EPA TSCA Orders to Halt Use of PFAS in Certain Plastic Containers

On March 21, the 5th U.S. Circuit Court of Appeals vacated two EPA orders prohibiting the company Inhance Technologies from producing PFAS during the manufacturing of its fluorinated high-density polyethylene (HDPE) plastic containers, which are used to hold products like pesticides and household cleaners. In 2019, the Agency linked the fluorinated HDPE plastic containers manufactured by Inhance to PFOA-contaminated drinking water in Easton, Massachusetts. Since then, EPA has determined that three PFAS produced (PFOA, PFNA, and PFDA) are highly toxic and present unreasonable risks that cannot be prevented other than through prohibition of manufacture. The regulatory orders were taken under section 5(f) of the Toxic Substances Control Act (TSCA), which gives EPA the authority to take action when a new chemical or significant new use of an existing chemical presents an unreasonable risk of injury to health or the environment without considering cost or other non-risk factors.

The three-judge panel agreed with Inhance that the Agency overstepped its authority since section 5(f) of TSCA is reserved for regulating “new” chemicals or “new chemical uses.” The court determined that this section of TSCA doesn’t apply to Inhance’s fluorination process that creates PFOA, PFNA, and PFDA because the company has used this process for decades. The judges determined that the word “new” in section 5 of TSCA cannot be used on such a long-standing process, even if it was not previously known only that the process creates PFAS.