Recent court ruling threatens progress in PFAS chemical regulation

PFAS have become a focal point for public health experts due to their association with a range of diseases, including cancer, liver and kidney conditions, and reproductive issues.

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The battle to regulate per- and polyfluoroalkyl substances (PFAS), commonly known as “forever chemicals,” has encountered a significant hurdle. A ruling from the right-wing Fifth Circuit Court of Appeals earlier this month may considerably slow down the already painstaking efforts to control these hazardous compounds. PFAS, notorious for their persistence in the environment and links to serious health issues, have infiltrated everyday products, exposing millions to potential harm.

PFAS have become a focal point for public health experts due to their association with a range of diseases, including cancer, liver and kidney conditions, and reproductive issues. These chemicals, valued for their resistance to water, oil, and heat, are prevalent in numerous consumer goods, from cookware to waterproof clothing.

The Fifth Circuit Court’s recent verdict challenges the Environmental Protection Agency’s (EPA) regulatory strategy under the Toxic Substances Control Act (TSCA). The case in question involves Inhance Technologies, a Houston-based firm specializing in the production of plastic containers using a fluorination process that yields perfluorooctanoic acid (PFOA), a notorious PFAS compound.

In 2020, the EPA initiated a requirement for companies to report “significant new uses” of PFAS, labeling these substances as an “urgent public health and environmental issue.” It was discovered that PFAS were leaching into pesticides stored in containers manufactured by Inhance, prompting the EPA to halt the company’s use of the fluorination process due to PFAS being an “unavoidable aspect” of its operations.

Inhance’s legal battle against the EPA’s directive underscores the complexities of regulating longstanding industrial practices under the “significant new use” provision of the TSCA. The Fifth Circuit’s ruling sided with Inhance, asserting that the company’s decades-old fluorination method does not constitute a “new use” and, therefore, falls outside the scope of the TSCA’s recent regulations.

“This ruling is likely to impede already excruciatingly slow efforts to regulate the presence of health-harming chemicals,” noted Watershed Investigations, highlighting the broader ramifications of the decision. Kyla Bennett of Public Employees for Environmental Responsibility (PEER) echoed this sentiment, criticizing the court’s narrow interpretation of “new use” while acknowledging the acknowledged health risks of Inhance’s products.

The court’s insistence that the EPA regulate Inhance’s operations under Section 6 of the TSCA, which necessitates a balance between economic impact and health risks, presents a new challenge. This section’s dual focus complicates the regulatory process, potentially diluting the emphasis on public health in favor of economic considerations.

PEER has voiced its concern, stating, “The court erroneously limits EPA’s authority to issue significant new use rules (SNURs) under the TSCA, seriously weakening this important tool for managing chemical risks to health and the environment.” This sentiment underscores the apprehension that the ruling could weaken a key mechanism for chemical regulation established since the TSCA’s inception in 1976.

Despite the setback, the fight to regulate PFAS emissions from industrial processes like Inhance’s continues in the legal arena. The EPA’s ongoing lawsuit against Inhance in the Eastern District of Pennsylvania, coupled with actions by the Center for Environmental Health and PEER, illustrates the commitment of environmental and public health advocates to curb PFAS pollution.

“There are several paths forward,” PEER asserts, signaling a steadfast resolve to explore all legal avenues to mitigate the dangers posed by PFAS compounds. This determination reflects a broader movement to protect public health and the environment from the insidious threat of forever chemicals.

The Fifth Circuit Court’s ruling not only impacts the immediate case involving Inhance Technologies but also sets a concerning precedent for future regulatory efforts. As legal and environmental experts ponder the implications, the need for a robust and effective framework to regulate harmful chemicals has never been clearer.

As the legal battles unfold and regulatory strategies are reevaluated, the commitment to safeguarding public health against the pervasive threat of PFAS remains unwavering. “Our groups are fully committed to taking all steps available to assure that the Inhance fluorination no longer produces dangerous PFAS which put workers, consumers, and communities at risk,” PEER’s statement said.

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