09
Apr
Industry Stops PFAS Restrictions, Reverses EPA in Court, as Plastic Leaches Contaminants
(Beyond Pesticides, April 9, 2024) The United States Court of Appeals for the Fifth Circuit, in an opinion authored by Circuit Judge Cory T. Wilson, has vacated an action by the U.S. Environmental Protection Agency (EPA) that had ordered the Texas-based manufacturer Inhance Technologies, L.L.C. to stop producing plastic containers that leach toxic per- and polyfluoroalkyl substances (PFAS) into pesticides, household cleaners, condiments, and additional products. EPA has taken action after the agency determined that the PFAS created during the fluorination process “are highly toxic and present unreasonable risks that cannot be prevented other than through prohibition of manufacture.â€
While the court is not challenging EPA’s authority to determine the hazards associated with PFAS exposure to be unacceptable, on a technicality, it is finding that the agency used the wrong section of the Toxic Substances Control Act (TSCA), Section 5, which the court says is focused on new uses. According to the Court, “The EPA is just not allowed to skirt the framework set by Congress by arbitrarily deeming Inhance’s decades-old fluorination process a “significant new use,†even though EPA’s awareness of the PFAS contamination was “new†to the agency and not disclosed by the manufacturer. Even if EPA were to pursue another approach (Section 6) under TSCA, the court notes that the agency must “weigh the costs to businesses and the overall economy before shutting down an ongoing manufacturing process.†And so goes the limitations of federal law in protecting public health as a primary and superseding goal.
This case serves as one example, among the many under federal law, in which efforts to limit the use of petrochemical pesticides are impeded by weak policy without clear mandates. The court decision elevates the challenges posed by federal laws that do not clearly meet the enormity of the current and escalating public health, environmental, and climate crises—in this case, exemplified by long-chain PFAS contamination from one manufacturer. 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 National Organic Standards Board (NOSB) to develop a strategy for eliminating plastics and PFAS from organic as a priority issue including at the upcoming meeting this spring.
Background
The discovery of PFAS—a group of nearly 10,000 highly persistent and human-made toxic chemicals—in widely-used pest management products, such as the mosquito insecticide Anvil 10+10, raises alarm about the extent of PFAS contamination and its potential impact on public health, including contamination of drinking water and waterways. In 2020, testing spearheaded by Public Employees for Environmental Responsibility (PEER) discovered high levels of PFAS in Anvil, subsequently confirmed by EPA in 2021, and in fluorinated products. These findings prompted EPA to investigate the source of the contamination—as the plastic containers leached PFAS.Â
In response, PEER and the Center for Environmental Health (CEH) notified EPA and Inhance Technologies in October 2022 of their intent to file a lawsuit to stop the manufacture and use the PFAS-contaminated product. EPA eventually filed a lawsuit against Inhance in December 2022, as did PEER and CEH, seeking to enjoin the company from continuing to produce multiple per- and polyfluoroalkyl substances in violation of TSCA. The two cases were later combined in the District Court for the Eastern District of Pennsylvania. In April 2023, a federal district court judge dismissed the PEER and CEH suit without prejudice at the request of both Inhance and EPA on the grounds the government was “diligently prosecuting†its case. In response to the 5th Circuit Court’s appellate decision to vacate EPA’s stop manufacturing order, PEER and CEH are moving to intervene in the DOJ suit against Inhance. In February 2024, PEER and CEH announced a newly filed lawsuit against EPA for wrongfully withholding vital information, including test data on the presence of PFAS.
The EPA’s Determination and the Fifth Circuit Decision
The two orders by EPA prohibiting Inhance from manufacturing or processing PFAS during its fluorination process were issued under Section 5 of the TSCA, which empowers EPA to oversee and examine chemicals produced or brought into the United States. (See here for EPA’s PFAS framework and TSCA section 5). However, the company argued, and the court agreed, that the agency had incorrectly applied a TSCA section related to the new uses of chemicals, asserting that its process did not represent a new use. [Inhance has been fluorinating plastic containers using the same process since 1983, a process that manufactures PFAS and produces 200+ million containers annually.] While acknowledging the unreasonable risk to human health and the environment, the court concurred with Inhance’s interpretation and vacated the orders.
The Fifth Circuit decision alarms advocates with its significant implications for public health and the environment, as the public is left exposed to toxic PFAS without adequate protection. In addition, the court’s finding raises questions about the EPA’s authority to issue significant new use rules (SNURs) under TSCA. SNURs are crucial tools for managing chemical risks, and limiting EPA’s authority in this regard weakens the agency’s ability to protect public health and the environment (see PEER and CEH response here and here). Although EPA does not regulate PFAS in pesticide formulas, the agency lists these substances in the inert ingredient database, and thus product labels do not require disclosure of contaminants fundamental to pesticide products as a result of the manufacturing or packaging process. This is yet another reason to end the use of synthetic pesticides and recognize the benefits of organic agriculture.
The Impact on Public Health and the Only Viable Solution—Organic
As PEER noted, PFOA and twelve other PFAS chemicals are formed during the fluorination of high-density polyethylene (HDPE) plastic containers by Inhance Technologies, LLC of Houston, Texas. Inhance is the sole U.S. company conducting this type of fluorination. Studies by EPA, independent researchers, and Inhance itself show that PFAS leaches from the walls of containers into their contents, thus exposing millions of people to PFAS without their knowledge. In February 2024, EPA announced new methodology for detecting dangerous low levels of PFAS in plastic containers. The leaching of PFAS from plastic containers into various products, including pesticides, food, cosmetics, and cleaning supplies, poses a significant risk to millions of Americans though exposure via ingestion, inhalation, and dermal contact. Â
PFAS have been linked to various health issues, including cancer, reproductive problems, and immune system dysfunction. Concerns of safety in the use of fluorinated plastic containers used for packaging are because exposure to PFAS comes not just from leaching into the contents of the plastic containers, but also from handling the exterior of the containers. Factory workers and farmworkers have higher cumulative exposures, while critical windows of vulnerability, from pregnancy through childhood and the elderly, experience disproportionate risks of exposure. (See here, and here). The chemicals have been linked to cancer, liver damage, birth and developmental problems, reduced fertility, and asthma, among a range of other adverse health effects. As new drinking water health advisories issued by EPA show, PFAS levels as low as .02 parts per trillion (ppt) have the potential to cause adverse health effects for public health.
Certified organic agriculture can play a crucial role in addressing the widespread contamination of PFAS as the only viable solution in the long run. Organic agriculture prohibits the use of petrochemical pesticides and fertilizers under a robust regulatory system created by the Organic Food Production Act (OFPA) and overseen by the NOSB, which reports directly to the U.S. Secretary of Agriculture. As the only agricultural system with public input and standards as defined by federal law, organic promotes sustainable farming practices that prioritize soil health and biodiversity. As the governing body responsible for setting organic standards, the NOSB must take a leadership role in developing a comprehensive strategy for eliminating plastics and PFAS from organic production and packaging, ensuring that organic agriculture remains a safe and sustainable alternative to conventional farming.
Organic land management and regenerative organic agriculture eliminate the need for toxic agricultural pesticides. Given the wide availability of non-pesticidal alternative strategies, families and industry workers can apply these methods to promote a safe and healthy environment, especially among chemically vulnerable individuals. For more information on why organic is the healthy choice, see Beyond Pesticides’ webpage, Health Benefits of Organic Agriculture. Additionally, learn more about how the lack of adequate pesticide regulations can adversely affect human and environmental health by visiting Beyond Pesticides’ website, Keeping Organic Agriculture Strong, and a special edition of Pesticides and You, “Keeping Organic Strong.”Â
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
SourcesÂ
Inhance Technologies vs US EPA, US 5th Circuit Court Decision, March 21, 2024
US court blocks EPA order to eliminate PFAS in plastic containers, The New Lede, March 25, 2024
EPA Orders Issued to Inhance Technologies Related to Long-Chain PFAS Significant New Use Notices, EPA website, December 14, 2023
