DOJ Falls Short on Protecting the Public from Unsafe Exposure to PFAS Chemicals
Today the Center for Environmental Health (CEH) and Public Employees for Environmental Responsibility (PEER) expressed concerns that a recent court filing by the Department of Justice (DOJ) and the Environmental Protection (EPA) will allow Inhance Technologies USA of Houston, Texas, to continue to generate toxic PFAS or “forever chemicals” when fluorinating plastic containers, in violation of federal law.
In a filing last night, DOJ asked the District Court for the Eastern District of Pennsylvania for a declaratory judgment that Inhance is failing to comply with the Toxic Substances Control Act (TSCA) by creating nine toxic PFAS prohibited by a 2020 EPA Significant New Use Rule (SNUR) during the fluorination of tens of millions of plastic containers and bottles. PEER and CEH agree that Inhance’s violations of the law are clearcut and egregious. However, the DOJ motion failed to seek an injunction to stop Inhance’s unlawful conduct, allowing these dangerous violations of TSCA to continue to put millions of people at risk.
“Under no circumstances should EPA condone Inhance’s continued production of PFAS that endanger workers and consumers across the US when the Agency has known for over two years (and has now informed the District Court) that its actions are violating TSCA,” said Bob Sussman, attorney for CEH and former senior EPA official. “This case presents a critical test of whether EPA will adhere to its commitment to stop the buildup of toxic PFAS in people and the environment. So far, it is failing that test.”
“EPA has ignored this major public health threat for over two years and even now is not seeking meaningful and long overdue action to protect the public from exposure to PFOA and other PFAS that its 2020 SNUR sought to eliminate from the stream of commerce,” said Tim Whitehouse, executive director of Public Employees for Environmental Responsibility and a former senior EPA enforcement attorney. “PEER and CEH are determined to stop Inhance’s unlawful conduct and prevent unsafe exposure to PFAS and will shortly be taking steps in the ongoing litigation to seek this relief.”
PEER and CEH are intervenor-plaintiffs in the Department of Justice suit against Inhance in the United States District Court for the Eastern District of Pennsylvania and the PEER and CEH complaint seeks injunctive relief restraining Inhance from violating TSCA by generating toxic PFAS or “forever chemicals” when fluorinating plastic containers. EPA is now reviewing 18 Significant New Use Notices (SNUNs) filed by Inhance to seek approval to produce the unlawfully formed PFAS. CEH and PEER will be filing comments on the SNUNs next Monday urging EPA to refuse approval of the SNUNs and issue an order under TSCA prohibiting continued production of PFAS by Inhance.
Tens of millions of plastic containers used in vast sectors of the economy undergo fluorination before they are filled with products and distributed to consumers and businesses. Fluorination provides a chemical barrier to a pre-produced container, usually plastic. Tests conducted by EPA and other groups demonstrate that the PFAS from these containers leached into the contents of the container. The PFAS detected in fluorinated containers include perfluorooctanoic acid (PFOA), a toxic substance found in the blood of nearly all Americans, and a chemical EPA recently found to have “no dose below which ….is considered safe.”
Handling or using fluorinated containers is a significant pathway for unsafe human exposure to PFOA and other PFAS.