As part of its crackdown on per- and polyfluoroalkyl substances (PFAS), the US Environmental Protection Agency (EPA; www.epa.gov) has ordered Inhance Technologies (Houston, Texas, USA; www.inhancetechnologies.com) to halt production of three of the so-called “forever chemicals” generated in its manufacturing process for fluorinated HDPE by the end of February 2024.

Calling the EPA’s action equivalent to a ban on producing the containers, Inhance is contesting the decision taken under the authority of the Toxic Substances Control Act (TSCA). It has also taken its case to the US Fifth Circuit Court of Appeals in New Orleans in an effort to halt the “one-sided” order.

If the regulatory action is allowed to take effect, the company said it will be forced to shut down its 11 barrier technology facilities across the US, thereby disrupting downstream industries and related supply chains that rely on is its  “environmentally critical technology”.   

Fluorinated barrier packaging, the Texas producer says, protects the environment by preventing permeation of container contents (for the most part through evaporative emissions). It claims that its proprietary technology can “prevent more than 25,000 t/y of chemicals from being released into the environment that would otherwise occur due to packaging permeation”.

Inhance’s process has been under EPA scrutiny for some time, and NGOs have criticised the federal agency for moving too slowly. Earlier this year, however, a court declined to hear a lawsuit brought by environmentalists, and the government’s case has failed to gain traction up to now.

In the Houston-based firm’s fluorination process, a protective layer is sprayed onto the plastic container. Insisting that it has employed the same technology since 1983, Inhance accuses the environmental watchdog of leveraging the Significant New Use Rule (SNUR) “despite the fact that the technology is not new”. It maintains additionally that the process generates only “minute amounts” of long-chain PFAS unintentionally, and that these contain impurities “explicitly exempt” from the SNUR.

The EPA in particular denies Inhance’s claims that it “retrofitted” its stance after the final rule was published, to legitimise regulatory actions. A year ago, in December 2022, the regulator said, the process owner submitted Significant New Use notices (SNUN) for nine long-chain PFAS, and government scientists determined that three of these, perfluorooctanoic acid (PFOA), perfluorononanoic acid (PFNA), and perfluorodecanoic acid (PFDA), presented “unreasonable risks that cannot be prevented other than through prohibition of manufacture”. 

EPA stresses that its rules are aimed at protecting the public from exposure to the dangers inherent in containers used for a variety of household products, and that even small amounts of the forever chemicals, ingested through drinking water or by eating fish from PFAS-contaminated water, can pose a significant health risk especially as the chemicals can leach out. 

As an example, it points to a 2019 case in which the drinking water used by the town of Easton, Massachusetts, tested positive for PFOA. Probes traced the contamination to a mosquitocide used by state officials. In 2020, an EPA evaluation determined that the PFAS found in the mosquitocide came from the fluorinated HDPE plastic container used to store the product, which was manufactured by Inhance.

In March 2022, the agency issued a Notice of Violation to Inhance for its failure to notify authorities before it began manufacturing substances containing PFAS, and, as it now notes, gave the company five years from the proposal of the SNUR legislation in 2020 to submit information that manufacturing long-chain PFAS was part of its process. 

When a later probe established that Inhance was still manufacturing the regulated PFAS and “intended to continue to engage in its fluorination process,” the EPA’s compliance department passed the case to the US Department of Justice (DOJ, Washington DC; www.justice.gov), which filed against the company in December 2022. Inhance subsequently submitted the requested paperwork.

Alternatives to this fluorination process exist that will allow products with the necessary protective packaging to be used safely, the EPA underscored in a comment on its current regulatory move, adding that it “understands that Inhance is working on changes to its process with a stated goal of eliminating all PFAS production”. 

By the agency’s count, the Texas firm has historically fluorinated up to 200 mn containers annually, “more containers than there are households in America”.

Environmental groups engaged in the long-running discussion said they welcomed the EPA’s decision to essentially ban Inhance’s current fluorination process. 

“This is a huge step forward in eliminating PFAS from consumer products and a win for human health and the environment, the grouping Public Employees for Environmental Responsibility (https://peer.org) commented. “EPA has known about PFAS leaching from these containers for three years, and it’s a relief that that is finally taking action to halt this dangerous practice.”