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.

According to the EPA, Inhance has historically fluorinated up to 200 million HDPE containers annually. Inhance had a five year period to report its production of long-chain PFAS as a part of its manufacturing process. In March 2022, the EPA issued a Notice of Violation to Inhance for its failure to notify the EPA of its production of PFAS and failure to submit a significant new use notices (SNUNs). The EPA’s Office of Enforcement and Compliance Assurance (OCEA) determined that Inhance continued to produce PFAS in its HDPE container fluorination, with no intention of altering its process or ceasing its production of PFAS. The OCEA referred enforcement to the DOJ, which filed suit on behalf of the EPA in December 2022. On December 30, 2022, Inhance submitted SNUNs for the nine PFAS it manufactures, while continuing to deny that it is subject to the significant new use rule.

The December 2023 EPA orders were issued under the authority of the Toxic Substances Control Act (TSCA). Upon review of Inhance’s SNUNs, the EPA determined that three of the nine PFAS (PFOA, PFNA, and PFDA) produced by Inhance are highly toxic and present unreasonable risk that cannot be prevented other than prohibiting its manufacture. Under TSCA Section 5(f), the EPA order prohibits the continued manufacture of PFOA, PFNA and PFDA that are produced from the fluorination of HDPE. The EPA also noted that the remaining six PFAS chemicals manufactured by Inhance may present an unreasonable risk of injury to health or the environment and, under TSCA Section 5(e), is therefore requiring Inhance to cease manufacture of these chemicals and perform additional testing if it intends to restart production.

Inhance is challenging the December 2023 EPA orders, asserting its fluorination process is not a “new use” that can be prohibited under Section 5 of TSCA. On December 7, 2023, Inhance filed a petition for review of the EPA’s orders under Sections 5(e) and 5(f) of TSCA. The EPA orders were stayed by the 5th Circuit on December 12, 2023 pending resolution of the challenge. Oral arguments are scheduled for February 2024.

The EPA’s orders come as PFAS regulation continues to ramp up. The EPA alleges that even small amounts of long-chain PFAS chemicals, like the ones produced by Inhance, can significantly contribute to people’s long-term exposure and health risk.

For more information on compliance with updated PFAS regulations, please contact a member of Taft’s Environmental practice group.