As regulation of per- and polyfluoroalkyl substances (PFAS) continues to develop at the state and federal level, an issue of significant concern is the potential for product packaging made with PFAS to impart or “leach” those PFAS into the products contained within. In a prior article in this space, Taft’s Environmental practice group outlined a recent EPA order requiring a manufacturer of fluorinated high-density polyethylene (HDPE) containers designed to hold various liquid products to cease producing such packaging using PFAS, out of concern for the risk of PFAS leaching into the products. Now, at least one state legislature is taking up the issue in an effort to prevent products containing PFAS as a result of leaching from entering commerce in that state.
Closed Tennessee Landfill Sued Under the Clean Water Act for Alleged PFAS in Permitted Discharges
Environmental non-profit Tennessee Riverkeeper has filed a Clean Water Act (CWA) citizen suit against the City of Lebanon alleging unlawful discharges of multiple per- and polyfluoroalkyl substances (PFAS) from the City’s inactive municipal landfill. Riverkeeper acknowledges that the landfill has a valid NPDES permit that authorizes the discharge of treated leachate, but it nevertheless alleges that the discharges constitute a CWA violation because none of the PFAS are specifically listed as authorized “pollutants” in the facility’s permit.
Section 301(a) of the CWA generally prohibits the discharge of “any pollutant” from a point source into a water of the united states, except pursuant to a permit or in compliance with certain listed section of the CWA. “Pollutant” is defined expansively as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C.A. § 1362. Thus, potential liability is broad. But it is certainly not unlimited. In cases like this, where the defendant has a permit and is not alleged to be in violation of any specific discharge limit, a citizen suit claim could face a number of potential hurdles.
US EPA Seeks to Eliminate PFAS From HDPE Plastic Containers
On December 1, 2023, the U.S. EPA ordered Inhance Technologies LLC (Inhance) to stop producing per- and polyfluoroalkyl substances (PFAS) as part of its fluorination of high-density polyethylene (HDPE) containers. According to the EPA, Inhance’s fluorination process enhances the barrier properties of plastic containers, but produces nine different types of PFAS.
Fluorinated HDPE containers are used for storing household products, pesticides, and other industrial goods. In 2019, the drinking water of the town Easton, Massachusetts, tested positive for PFOA, a type of PFAS, and was traced back to a mosquitocide used by state officials. In September 2020, the EPA determined that the PFAS found in the mosquitocide emanated from the product’s HDPE plastic container, which was fluorinated by Inhance. EPA later concluded that PFOA and other PFAS chemicals in containers fluorinated by Inhance can migrate into liquid products and continue migrating over time.