Companies that manufacture, use, distribute, and dispose of fluorinated plastic containers should take note that the U.S. Environmental Protection Agency (EPA) recently granted a petition from several environmental groups that asked the agency to address per- and polyfluoroalkyl substances (PFAS) formed during the fluorination of plastic containers. The petition, dated April 11, 2024, requests that the EPA promulgate a rule pursuant to Section 6(a) of the Toxic Substances Control Act (TSCA) that would prohibit the manufacture, processing, use, distribution in commerce, and disposal of fluorinated plastic containers containing one of three PFAS formed during the fluorination process.

The three PFAS at issue—perfluorooctanoic acid (PFOA), perfluorononanoic acid (PFNA), and perfluorodecanoic acid (PFDA)—have already been the subject of several new EPA proposals and standards in 2024. In February of this year, the EPA proposed to add all three (along with six other PFAS) to its list of hazardous constituents under the Resource Conservation and Recovery Act (RCRA). PFOA and PFNA were also included in the EPA’s new drinking water standards announced in April, and PFOA is one of two PFAS that the EPA recently designated as a hazardous substance under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

In granting the petition, the EPA agreed to commence “an appropriate proceeding” pursuant to TSCA Section 6(a) related to “the formation of PFOA, PFNA, and PFDA during the fluorination of plastic containers.” As part of that proceeding, the EPA announced that it intends to “request information, including the number, location, and uses of fluorinated containers in the United States; alternatives to the fluorination process that generates PFOA, PFNA, and PFDA; and measures to address risk from PFOA, PFNA, and PFDA formed during the fluorination of plastic containers.” 

Ultimately, the aforementioned actions may lead the EPA to promulgate the requested ban on PFOA-, PFNA-, and PFDA-containing plastic containers. To do so, however, the EPA must find “that there is a reasonable basis to conclude that the manufacture, processing, distribution in commerce, use, or disposal of” fluorinated plastic containers containing PFOA, PFNA, or PFDA “present an unreasonable risk of injury to health or the environment.” Based on the EPA’s November 30, 2023 risk assessment of PFAS in fluorinated high-density polyethylene plastic containers, such a finding seems like a fait accompli. Thus, companies that manufacture, process, distribute, use, or dispose of fluorinated plastic containers may wish to consider now the “written data, views, and arguments” they would like to submit pursuant to TSCA Section 6(c)(2)(B) in response to any proposed rule.

Companies that manufacture, use, and distribute fluorinated plastic containers should also evaluate whether any PFAS is leaching into the products stored in the containers. Notably, a new EPA method released in February of this year allows for the detection of 32 PFAS compounds directly from walls of these fluorinated plastic containers.