Environmental Groups Sue EPA Over PFAS in Plastic Containers

Environmental groups sued the EPA on Thursday over an alleged lack of action to regulate the distribution of plastic containers contaminated with PFAS.

The suit, filed in the US District Court for the District of Columbia, argues that the Environmental Protection Agency violated the Toxic Substances Control Act by failing to take action within 180 days of receiving information that suggests a significant risk of harm from per- and polyfluoroalkyl substances (PFAS). It asks the agency to halt the manufacture and distribution of “tens of millions” of the containers.

“EPA recognized the existence of an unreasonable, imminent hazard several months ago but has yet to deliver the necessary action to protect public health,” Robert Sussman, who represents plaintiff the Center for Environmental Health, said in a press release.

Kyla Bennett, science policy director at Public Employees for Environmental Responsibility, which is also a plaintiff, said in the statement the “EPA’s failure to protect the public from exposures to toxic PFOA in their daily lives is inexcusable and reflects a severe leadership deficit at the agency.”

The suit follows a petition filed Monday by 10 nonprofits, led by the Center for Food Safety, which asked the EPA to amend its regulations under the Federal Insecticide, Fungicide, and Rodenticide Act to ban PFAS from pesticides and the plastic containers that release the chemicals into pesticides.

A harmful type of PFAS, perfluorooctanoic acid (PFOA), is created through the fluorination of plastic containers by Inhance Technologies LLC, according to the lawsuit.

The EPA is obligated to act under TSCA, according to the suit, since the agency “was in possession of conclusive data” since at least March 2023 that “PFOA (i) is carcinogenic to humans and has no safe level of exposure and (ii) is present in tens of millions of plastic containers fluorinated by Inhance and used to package numerous common commercial and consumer products distributed and used throughout the economy.”

The EPA has attempted a number of steps to examine PFAS in plastic containers, only to be rebuffed in court.

The agency last year ordered Inhance to halt production after it found the company’s process of exposing high-density polyethylene containers to fluorine gas in order to strengthen them unintentionally generated three types of PFAS in an insecticide product. The US Court of Appeals for the Fifth Circuit struck down the EPA’s order earlier this year.

Because that order never took effect, “EPA has failed to discharge its non-discretionary duty under section 4(f)” of TSCA “to address these risks,” the lawsuit says.

The agency this month said it would review three types of PFAS formed during the fluorination of plastic containers, granting a petition from environmental groups.

PEER is representing itself in the lawsuit. The Center for Environmental Health is represented by Sussman & Associates.

The case is Public Employees for Environmental Responsibility v. EPA, D.D.C., No. 1:24-cv-02194, Complaint Filed 7/25/24