CEH and PEER Sue EPA Over PFOA Production in Fluorination Process

Legal Action Against the EPA

The Center for Environmental Health (CEH) and Public Employees for Environmental Responsibility (PEER) have filed a lawsuit against the U.S. Environmental Protection Agency (EPA) in the U.S. District Court for the District of Columbia. The suit demands the EPA implement a rule under Section 6 of the Toxic Substances Control Act (TSCA) to prohibit the production of perfluorooctanoic acid (PFOA) during the fluorination process used by Inhance Technologies, LLC (Inhance).

Claims and Allegations

The petitioners allege that the EPA has neglected its non-discretionary duties as outlined in TSCA Section 4(f). This duty, they argue, became relevant within 180 days following the EPA’s proposed National Primary Drinking Water Regulation (NPDWR) for PFOA and other per- and polyfluoroalkyl substances (PFAS) announced on March 29, 2023. The NPDWR report stated that PFOA is likely to cause cancer, including kidney and liver cancer, and there is no safe level of exposure.

The petitioners contend that to ensure compliance, the court should mandate the EPA to expedite the proposal of a rule under TSCA Section 6 to ban PFOA production during Inhance’s fluorination process. They argue that if the EPA has not enacted a rule immediately, it is required by TSCA Section 7(a)(2) to initiate immediate legal action if the substance is deemed "imminently hazardous." Therefore, the court should direct the EPA to file an imminent hazard action or make the proposed rule effective upon publication.

Recent Developments

The EPA announced it had granted a petition under TSCA Section 21. This petition requested the EPA to establish regulations under TSCA Section 6 to ban the manufacture, processing, use, distribution, and disposal of three PFAS, including PFOA, which are formed during the fluorination of plastic containers.

The EPA has pledged to begin an appropriate proceeding under TSCA Section 6 promptly. The agency’s upcoming actions include requesting detailed information on fluorinated containers in the U.S., exploring alternatives to the fluorination process, and evaluating risk mitigation strategies for PFOA, perfluorononanoic acid (PFNA), and perfluorodecanoic acid (PFDA) formed during the process.

Conclusion

The legal challenge highlights ongoing concerns about the regulation of hazardous chemicals and the EPA's role in addressing environmental and health risks. As the case progresses, it underscores the need for effective regulatory measures to manage and mitigate the impacts of PFAS, particularly PFOA, on public health and the environment.