EPA | PFAS

Federal Appeals Court overturns US Environmental Protection Agency orders

The ongoing case, Inhance Technologies v. U.S. Environmental Protection Agency et al., is being heard in the 5th U.S. Circuit Court of Appeals.

In a recent legal decision, the 5th Circuit Court of Appeals addressed the application of Section 5 of the Toxic Substances Control Act (TSCA) to Inhance Technologies' long-standing fluorination process, used for over four decades to strengthen plastic packaging. The court ruled that Section 5 does not extend to Inhance's process, despite its recent discovery of inadvertently generating per- and polyfluoroalkyl substances (PFAS). Circuit Judge Cory Wilson criticized the EPA's interpretation of "new" under Section 5, stating it "defies common sense."

PFAS are a group of chemicals found in numerous consumer products like non-stick pans and stain-resistant clothing, associated with cancer and hormonal dysfunction, earning the nickname "forever chemicals" due to their persistence. They emerge as byproducts of the fluorination process, wherein plastic containers are treated with fluorine gas to enhance rigidity.

Amid escalating concerns over PFAS' impact on health and the environment, the EPA in 2020 initiated measures requiring companies to report significant new uses of certain PFAS. In response, Inhance filed a lawsuit against the EPA in the 5th Circuit in December of that year, challenging orders prohibiting specific PFAS production during its fluorination process.

Inhance argued these orders could force them out of business, disputing the categorization of PFAS production as new due to the process's long-standing use. The company contended that Section 5 allowed the EPA to bypass a comprehensive economic analysis. The 5th Circuit acknowledged the EPA's authority to regulate Inhance's fluorination process under Section 6 for existing chemical uses but noted the requirement for a rigorous cost-benefit analysis and public feedback period.