Flawed Fifth Circuit Decision Leaves Public Exposed to Toxic PFAS
CONTACT
Kyla Bennett [PEER] kbennett@peer.org, (508) 230-9933
Bob Sussman [CEH] bobsussman1@comcast.net, (202) 716-0118
Environmental Groups Vow to Fight On
Washington, DC — Public Employees for Environmental Responsibility (PEER) and Center for Environmental Health (CEH) said they were deeply disappointed and alarmed by yesterday’s flawed decision by the Fifth Circuit Court of Appeals which set aside EPA’s landmark orders requiring Inhance Technologies to stop producing highly dangerous long-chain per- and polyfluoroalkyl substances (PFAS) during the fluorination of plastic containers.
Although the Court vacated EPA’s action, it did acknowledge that EPA determined that three PFAS manufactured by Inhance present an unreasonable risk of injury to human health and the environment, and that six additional PFAS manufactured by Inhance may also do so. The Fifth Circuit did not dispute this underlying and extremely concerning finding. 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. Among these substances is perfluorooctanoic acid (PFOA), a recognized human carcinogen that EPA determined has no safe level of exposure.
Inhance Technologies’ fluorination process results in hundreds of millions of plastic containers leaching toxic PFAS chemicals into food, cosmetics, cleaning supplies, fuels, and other household products. This public health danger must be addressed.
Significantly, Inhance’s customers are now unquestionably on notice that their products contain several PFAS that EPA has determined are harmful to health. They should consider alternatives to fluorination that are PFAS-free.
An amicus in the Fifth Circuit case presented evidence about currently available alternatives to fluorination to effectively achieve the same barrier properties as Inhance’s PFAS-creating technology.
Along with EPA, PEER and CEH are plaintiffs in a December 2023 suit in the Federal District Court for the Eastern District of Pennsylvania to enforce Toxic Substances Control Act (TSCA) requirements against Inhance. The District Court is not bound by the Fifth Circuit decision. PEER and CEH will now pursue that case in addition to any other remedies that are available to abate this significant and unreasonable danger to public health, and will urge the government to do so as well.
The Fifth Circuit’s decision contains misinformation, overlooks key issues and legal principles, and fails to address compelling arguments by EPA and our groups defending the legality of the challenged orders.
The Court erroneously limits EPA’s authority to issue significant new use rules (SNURs) under the TSCA, seriously weakening this important tool for managing chemical risks to health and the environment which has been a mainstay of the TSCA program since the law’s enactment in 1976.
There are several paths forward, and our groups are fully committed to taking all steps available to assure that the Inhance fluorination no longer produces dangerous PFAS which put workers, consumers, and communities at risk.
###