5th US Circuit Court of Appeals

By Shannon Kelleher

A US appeals court has vacated an action by the US Environmental Protection Agency (EPA)  ordering a company to stop producing plastic containers that leach toxic per- and polyfluoroalkyl substances (PFAS) into pesticides, household cleaners, condiments, and many other products.

The 5th US Circuit Court of Appeals on March 21 ruled that the EPA exceeded its statutory authority when it issued orders to Texas-based Inhance in December prohibiting the company from manufacturing or processing PFAS through its fluorination process for containers.

The EPA move came after the agency determined that types of PFAS created during the fluorination process “are highly toxic and present unreasonable risks that cannot be prevented other than through prohibition of manufacture.”

The agency issued the orders under the Toxic Substances and Control Act (TSCA), which authorizes the EPA to regulate and screen chemicals produced or imported into the US.

But Inhance challenged the EPA’s action, arguing that the EPA improperly sought to take action against the company under a section of TSCA dealing with new uses of chemicals, and that Inhance’s process did not constitute a new use.

The court agreed that the fluorination technique Inhance uses to prevent liquids from leaking out of its plastic containers – a process that creates PFAS chemicals – does not count as a significant new use since Inhance has been using this process since 1983.

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