US appeals court kills ban on plastic containers contaminated with PFAS

A federal appeals court in the US has killed a ban on plastic containers contaminated with highly toxic PFAS “forever chemicals” found to leach at alarming levels into food, cosmetics, household cleaners, pesticides and other products across the economy.

Houston-based Inhance manufactures an estimated 200m containers annually with a process that creates, among other chemicals, PFOA, a toxic PFAS compound. The Environmental Protection Agency (EPA) in December prohibited Inhance from using the manufacturing process.

But the conservative fifth circuit court of appeals court overturned the ban. The judges did not deny the containers’ health risks, but said the EPA could not regulate the buckets under the statute it used.

The rule requires companies to alert the EPA if a new industrial process creates hazardous chemicals. Inhance has produced the containers for decades and argued that its process is not new, so it is not subject to the regulations. The EPA argued that it only became aware that Inhance’s process created PFOA in 2020, so it could be regulated as a new use, but the court disagreed.

“The court did not dispute EPA’s underlying decision that this is a danger to human health, what they did was say it’s not a new use, which I think is wrong … but this case isn’t over by any stretch,” said Kyla Bennett, a former EPA official now with the Public Employees for Environmental Responsibility (Peer) non-profit, which has intervened in legal proceedings.

PFAS are a class of about 15,000 compounds used to make products resistant to water, stains and heat. They are known as “forever chemicals” because they do not naturally break down, and they have been linked to cancer, high cholesterol, liver disease, kidney disease, fetal complications and other serious health problems.

The EPA said in a statement to the Guardian that it was reviewing the decision.

Instance said in a statement its “technologies … keep thousands of tons of harmful chemicals and fuels out of the environment, preserve product quality, and ensure compliance with many global regulations”.

However, the company in 2021 admitted the creation of PFAS is “an unavoidable aspect” of its process.

The decision is the latest salvo in a four-year legal fight over the company’s manufacturing process. Inhance treats containers with fluorinated gas to create a barrier that helps keep products from degrading.

A peer-reviewed study in 2011 found Inhance’s containers leached the toxic compounds into their contents. Bennett and the EPA found in 2020 that PFAS were leaching into pesticides held by containers Inhance produced, and several follow-up studies reconfirmed the problem. Since 2020, Inhance appears to have repeatedly lied to regulators and customers about whether PFAS leached from its containers, and for several years resisted EPA’s demands to submit its process for review.

The company is facing a separate lawsuit from a pesticide maker who claims Inhance concealed its products’ dangers.

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The fifth circuit judges wrote that the EPA would have to regulate the containers under Section 6 of the Toxic Substances Control Act (TSCA), which the judges and Inhance claim would require the EPA to take into account the economic impact on Inhance. The company has said a ban on its fluorination process would put it out of business.

However, Peer noted Section 6 states health risks should be weighed “without consideration of costs or other non-risk factors”.

Bennett also noted that the EPA and other companies have found alternatives to treating containers with PFAS, including those that are strong enough for storing highly corrosive substances, like pesticides.

Another lawsuit over the containers is playing out in federal court in Pennsylvania, and a contradictory decision from it could send the issue to the US supreme court. The EPA has other options, Bennett stressed, including Section 6.

“Given how strong the EPA’s orders [to ban the containers] were, I can’t imagine they will throw their hands up and walk away,” she said.