EPA Takes Action on Inhance Technologies LLC for Fluorinated HDPE Containers

On December 1, 2023, the U.S. Environmental Protection Agency (EPA) took significant regulatory actions against Inhance Technologies LLC, prompted by the reception of significant new use notices (SNUNs) in December 2022 regarding per- and polyfluoroalkyl substances (PFAS). EPA issued two separate, but interconnected, unilateral orders concerning Inhance's production of nine long-chain perfluoroalkyl carboxylates (LCPFACs).

The first order, operating under the authority of Section 5(f) of the Toxic Substances Control Act (TSCA), directed Inhance to cease the production of three specific LCPFACs—PFOA, PFNA, and PFDA. EPA asserted that these substances, generated during the manufacturing of fluorinated high-density polyethylene (HDPE) containers by Inhance, are highly toxic and pose unreasonable risks. The EPA emphasized that the only way to mitigate these risks was by prohibiting the continued manufacture of PFOA, PFNA, and PFDA produced from the fluorination of HDPE.

In the second order, enacted under TSCA Section 5(e), EPA concluded that the remaining six LCPFACs, subject to Inhance's SNUNs, might present an unreasonable risk to health or the environment. As Inhance's current fluorination process simultaneously produces all nine PFAS chemicals mentioned, EPA ordered the halt of production for the six LCPFACs until the fluorination process ceases to generate PFOA, PFNA, and PFDA.

Both orders, issued on December 1, 2023, by EPA, were set to become effective on February 28, 2024. While the petition did not specify the objections to EPA's actions, Inhance publicly stated on December 8, 2023, that compliance with the orders would force the shutdown of its 11 barrier technology facilities across the U.S., disrupting downstream industries and supply chains dependent on its environmentally critical technology.

Inhance further intensified its stance on December 12, 2023, by seeking expedited review from the Fifth Circuit and requesting a stay of EPA's orders pending the court's consideration of its appeal. The Fifth Circuit responded favorably to Inhance's request on the same day, granting a stay of EPA's two orders until it could evaluate Inhance's appeal through expedited review.

On December 22, 2023, Inhance submitted a brief in support of its December 7, 2023, petition to the Fifth Circuit. Subsequently, on December 29, 2023, five trade associations submitted an amicus curiae brief in support of Inhance's position.

EPA, in its initial announcement of the orders on December 1, 2023, did not provide additional details regarding Inhance's submission of SNUNs for the nine long-chain PFAS. Notably, Inhance and supporting trade associations highlighted in their respective briefs that when Inhance submitted the SNUNs in question, it did so under protest. Inhance consistently argues that the Significant New Use Rule (SNUR) for LCPFACs finalized by EPA in July 2020 does not apply to its long-standing fluorination process, which Inhance maintains is an ongoing use exempt from EPA's SNUR. Inhance further contends that even if the fluorination process were considered new, the LCPFACs in question are impurities exempt from EPA's regulation.

The legal proceedings are ongoing, and the outcome may establish significant precedent in 2024.