Data on PFAS in Some Plastics Concealed by EPA, Lawsuit Alleges

The EPA has failed to disclose information the nation’s primary commercial chemicals law requires to be public, allege two nonprofit environmental advocacy groups in a lawsuit filed on Thursday.

Public Employees for Environmental Responsibility (PEER) and the Center for Environmental Health claim the Environmental Protection Agency is violating the Freedom of Information Act (FOIA) by not disclosing after more than a year health and safety information the Toxic Substances Control Act says must be publicly available.

The complaint, filed with the US District Court for the District of Columbia, details information on PFAS concentrations in certain plastics exposed to fluorine gas by Inhance Technologies, lab methods used to measure those concentrations, and health effects data, if any, that the company submitted to the agency and which the groups have been requesting for more than a year. Summaries of what the groups say are EPA’s responses, including multiple requests for more time to review confidential business claims allegedly asserted by Inhance, also are in the complaint.

The EPA declined to comment on pending litigation.

The groups’ information request is part of an investigation PEER launched in 2020 when it found per- and polyfluoroalkyl substances (PFAS) in pesticides that states spray to kill mosquitoes.

The EPA’s subsequent investigation led it to conclude a fluorine gas exposure process Inhance used to make plastic containers stronger and prevent pesticides and other chemicals from being released into the environment inadvertently also generated PFAS in the plastic. That PFAS transferred into the containers’ contents, the EPA found. The agency’s discovery led it eventually to sue the company and regulate its fluorine process. Oral arguments in a second lawsuit Inhance filed challenging the EPA’s regulation were heard on Feb. 5 by the US Court of Appeals for the Fifth Circuit.

In a separate, but related action, the EPA released on Thursday a chemical detection method that laboratories can use to identify 32 PFAS from the walls of the high-density polyethylene containers. Those are the types of plastic containers Inhance exposes to fluorine gas.

“The method can accurately identify PFAS contamination at levels as low as 0.002 parts-per-billion (or 2 parts-per-trillion),” and it can be modified to test for those chemicals in other solid materials such as fabrics paper packaging, and more, the agency said. That means this is the first EPA-approved method to test PFAS in solid materials.

The case is Pub. Emps. for Envtl. Responsibility v. EPA, D.D.C., No. 24-cv-00445, 2/15/24.