17
Oct
PFAS Contaminated Plastic Containers Focus of EPA Public Comment Period through November 29
Beyond Pesticides (October 17, 2024) On September 30, 2024, the U.S. Environmental Protection Agency (EPA) opened a public comment period about production of specific per- and polyfluoroalkyl substances (PFAS, also known as ‘forever chemicals’)—including perfluorooctanoic acid (PFOA), perfluorononanoic acid (PFNA), and perfluorodecanoic acid (PFDA). EPA is collecting information on the fluorination process of high-density polyethylene (HDPE) and other plastic containers to inform possible regulatory action under the Toxic Substances Control Act (TSCA). The deadline for submitting comments is November 29, 2024.
PFOA and twelve other PFAS compounds are created during the fluorination of HDPE plastic containers by Inhance Technologies, LLC, the only U.S. company manufacturing containers using this fluorination technique (see here). Studies by EPA, independent researchers, and the company itself demonstrate that PFAS leaches from container walls into contents, exposing millions to these toxic chemicals without their knowledge. EPA notes, “Long-chain PFAS like PFOA, PFNA, and PFDA build up in our bodies and the environment over time. Even small amounts can significantly contribute to people’s long-term exposure and health risk for cancers, impacts to the liver and heart, and immune and developmental damage to infants and children.â€
The adverse effects of PFAS exposure are linked to serious health issues, including cancer, reproductive disorders, and immune system dysfunction. Factory and farmworkers, due to cumulative exposure, and vulnerable groups exposed to HDPE products, face heightened risks. Leaching affects a broad range of household and daily-use products, from pesticides to food, cosmetics, and cleaning supplies, presenting risks through ingestion, inhalation, and skin contact. In addition, cumulative exposure to PFAS emerges from multiple sources in daily life. In recent years, EPA has acknowledged this critical issue; in April 2024, the agency’s first-ever enforceable drinking water standards for PFAS, “National Primary Drinking Water Regulation†(NPDWR) included PFOA and PFNA and designated PFOA as one of the first two hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as Superfund).Â
PFAS contamination from Inhance Technologies manufactured plastic containers
 EPA has been involved in the PFAS tragedy revolving around Inhance Technologies’ plastic container manufacturing process since the agency was notified by Public Employees for Environmental Responsibility (PEER) in September 2020. In April 2024, a coalition of environmental and public health organizations, including PEER, filed a TSCA Section 21 petition, urging EPA to immediately halt the production of plastic containers with PFAS levels that leach into consumer products and the environment. The petition calls on the agency to use its TSCA Section 6 authority to ban the production of PFOA, PFNA, and PFDA produced as a result of Inhance’s fluorination process. EPA approved this petition on July 10, 2024, and is now calling for public comments to inform EPA’s response.
In the petition, PEER highlights that the U.S. Court of Appeals for the Fifth Circuit, as referenced later in this post, acknowledges EPA’s authority to regulate the fluorination process that generates PFAS under TSCA’s Section 6. This provision mandates that when EPA identifies a chemical as posing an “unreasonable risk of injury to health or the environment,†it must take necessary measures to mitigate that risk. This is precisely the action sought by the petitioners.
“The Toxic Substances Control Act allows EPA to issue an immediately effective rule to prohibit or limit any chemical process determined to present an unreasonable risk of injury if serious or widespread injury is likely before completion of the rulemaking process,†said Bob Sussman, principal in Sussman and Associates, former senior EPA official in the Obama Administration, and legal advisor to the Center for Environmental Health, one of the petitioners with PEER. “EPA has all the evidence it needs to justify this action and should not allow Inhance to continue to expose Americans to dangerous PFAS one day longer than necessary,†Mr. Sussman continued.
In fact, EPA did previously take such decisive action, however, the decision was consequently reversed by the judiciary. On December 1, 2023, EPA issued stop orders to Inhance Technologies, LLC, mandating the cessation of PFAS production, which occurs during the fluorination process of the company’s HDPE plastic containers. In December 2022, Inhance submitted Significant New Use Notices (SNUN) for nine PFAS chemicals, including PFOA, PFNA, and PFDA. Following its review, EPA determined that these three PFAS chemicals pose serious health risks, requiring prohibition to prevent harm. Consequently, under TSCA Section 5(f), the agency banned further production of PFOA, PFNA, and PFDA resulting from HDPE fluorination.
In response, Inhance challenged EPA’s orders, resulting in a March 21, 2024, ruling by the U.S. Court of Appeals for the Fifth Circuit to vacate the agency’s decision. The court found that EPA had exceeded its authority by using TSCA Section 5 instead of Section 6, as Inhance’s decades-old fluorination process does not constitute a “significant new use.†Inhance argued that the process was not new due to its long-standing implementation, while the EPA contended that the lack of prior disclosure rendered it a significant new use. The court emphasized that this ruling does not restrict the EPA from regulating Inhance’s fluorination process under TSCA Section 6, provided it follows the procedural guidelines. The Fifth Circuit decision did note that if EPA were to pursue another approach (Section 6) under TSCA, the agency must “weigh the costs to businesses and the overall economy before shutting down an ongoing manufacturing process.†Public health advocates say that this starkly underscores the limitations of federal law in protecting public health in the face of corporate interests and profits. (See here).
PFAS contamination also found in pesticides
The Center for Food Safety—joined by environmental, farm, and grassroots organizations including Beyond Pesticides—submitted a groundbreaking petition to EPA in July 2024, urging immediate action to address PFAS in pesticides and pesticide containers. Numerous studies have shown that the broad use of PFAS chemicals, and the resulting environmental contamination, has devastating impacts on public health, wildlife, and pollinators. Despite acknowledging PFAS as an urgent public health and environmental issue, EPA has upheld hundreds of registrations of pesticide ingredients that fall into the PFAS category. (See here to take action).
As the situation evolves, environmental and public health advocates are continuing to pay close attention, given EPA’s recent history of testing for PFAS in pesticides from HDPE container contamination. In May 2024, PEER filed a complaint asserting that EPA issued misleading statements in falsely claiming that recent tests found no detectable per- and polyfluoroalkyl substances (PFAS) in pesticides (see here). PEER’s administrative complaint calls for the EPA to retract a 2023 research memo and press release, alleging these publications violated the agency’s standards for scientific quality and accuracy. In late 2022, research published in the Journal of Hazardous Materials Letters identified significant PFAS levels in widely used pesticides, contradicting EPA’s previous assurances that registered pesticides do not contain PFAS (see here). However, in the aforementioned  press release, EPA issued a non-peer reviewed memo stating the agency “did not find any PFAS in the tested pesticide products.â€
PEER alleges that EPA omitted critical details, including:
- Detection of PFAS in samples it both received and independently collected;
- Failure to report high PFAS levels, as revealed by documents obtained via the Freedom of Information Act; and
- EPA’s failure to disclose that test samples were spiked intentionally with PFAS—a standard quality control method—which EPA’s tests failed to detect, raising concerns over test reliability.
“This memo represents some of the poorest science I’ve seen from the agency,†said Kyla Bennett, PhD, PEER’s science policy director and former EPA scientist, emphasizing that failure to detect spiked PFAS is particularly concerning. Filed under the Information Quality Act (IQA), PEER’s complaint requires EPA to address any inaccurate scientific information it has published. The complaint further alleges that EPA ignored its own standards for peer review and quality control before publication.
As a note, in February 2024, EPA introduced a new testing method capable of detecting 32 PFAS directly from HDPE container walls, enabling HDPE container users and manufacturers to assess containers prior to use and assist in preventing contamination from stored products. [It can also be adapted for broader applications, including testing PFAS in other solid materials such as fabric and packaging paper.] However, the focus of the PEER petition is not to shift the burden of testing to food producers to keep their products safe from fluorinated PFAS-contaminated plastic containers; rather, it is to require EPA to carry out its legal responsibility to regulate PFAS under TSCA.
Organic certification system poised to act more quickly and effectively
Organic agriculture offers a long-term solution to PFAS contamination. Under the Organic Food Production Act (OFPA), organic producers are prohibited from using petrochemical pesticides and fertilizers, as well as biosolids often contaminated with PFAS, operating under a regulatory framework overseen by the National Organic Standards Board (NOSB). As the only agricultural system with a requirement for a farm plan, inspections and certification for compliance with organic standards, and rigorous public oversight, organic farming promotes sustainable practices that enhance soil health and biodiversity. Organic is attempting to reverse the escalating public health, environmental, and climate crises as EPA fails to prevent long-chain PFAS contamination throughout the country. Additionally, as there are organic certified foods that are stored in HDPE Inhance manufactured containers—and thus may introduce PFAS contamination into organic foods—the organic food certification system could more rapidly and effectively address the issue in comparison to relying on EPA regulatory authority, which is untenable to rely on given the recent reversal by court order.
Organic land management practices and certified organic agriculture are critical to the systemic shift to prevent further PFAS contamination, as Beyond Pesticides continues to call on the NOSB to develop a strategy for eliminating plastics and PFAS from organic as a priority issue. For more information, please see comments by Beyond Pesticides here calling for research into the elimination of plastic—in all aspects of organic production and handling—to be made a priority for the NOSB Fall 2024 meeting from Thursday, October 22 – Saturday, October 24, 2024, in Portland, Oregon.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Sources:
Certain Per- and Polyfluoroalkyl Substances (PFAS) Risk Management Under the Toxic Substances Control Act (TSCA); Request for Comment, EPA notice, Federal Register website
Public Health Groups File Petition to Compel EPA to Remove PFAS Immediately from Fluorinated Plastic Containers, PEER petition, April 11, 2024
EPA Grants Petition on Three PFAS Found in Fluorinated Plastic Containers, EPA website
EPA Must Retract Fraudulent PFAS Report, PEER press release, May 28, 2024
PEER Demand for Correction under the Information Quality Act (IQA), PEER filing, May 28, 2024
EPA Completes Scientific Testing of Pesticide Products for PFAS, EPA website, May 30, 2023
