Federal Appeals Court Overturns EPA’s Ban of PFAS in Manufacturing of Plastic Containers

The Fifth Circuit Court of Appeals in the U.S. on March 21 overturned previous orders by the U.S. Environmental Protection Agency (EPA) that banned the use of per- and polyfluoroalkyl substances, or PFAS, in product packaging by a plastics treatment company, Inhance Technologies.

In December 2023, the EPA issued two orders for Houston-based Inhance Technologies to stop manufacturing PFAS, including PFOA, in its plastics treatment processes. Exposure to PFOA may be linked to higher risks of certain types of cancer, according to the American Cancer Society. 

The PFAS are a byproduct from the company’s flourination process, which is used to make plastics more durable and prevent degradation of the products inside the treated containers. The company treats containers designed for products like cleaners and pesticides.

Inhance Technologies sued the EPA one week after receiving the orders, and it stated that if it had to follow the orders and shut down its fluorination process, it would go bankrupt.

The federal appeals court overturned the orders, saying the EPA exceeded its authority by issuing the orders under Section 5 of the Toxic Substances Control Act (TSCA). The judges said that Section 5 of the TSCA allowed the EPA to regulate the use of “new” chemicals or chemicals used in “new” ways, and they said they agreed with the argument that EPA overstepped by issuing the orders under Section 5 instead of Section 6, which applies to regulation on all chemicals.

The judges said that Section 5 did not apply to Inhance Technologies’ fluorination process, which has been used for 40 years, Reuters reported.

“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 nonprofit Public Employees for Environmental Responsibility (PEER), as reported by The Guardian.

The EPA told The Guardian it will review the decision from the federal appeals court.

PEER and the Center for Environmental Health (CEH) shared in a press release that they will “pursue that case in addition to any other remedies that are available to abate this significant and unreasonable danger to public health, and will urge the government to do so as well.”