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The original was posted on /r/keep_track by /u/rusticgorilla on 2024-04-09 12:24:30.

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Background

PFAS, or per- and polyfluoroalkyl substances, are a group of thousands of synthetic chemicals used in consumer products around the world. Due to their molecular structure, PFAS do not easily degrade and can last for millennia, leading to the moniker “forever chemicals.”

PFAS, a group of manufactured chemicals commonly used since the 1940s, are called “forever chemicals” for a reason. Bacteria can’t eat them; fire can’t incinerate them; and water can’t dilute them. And, if these toxic chemicals are buried, they leach into surrounding soil, becoming a persistent problem for generations to come…The secret to PFAS’s indestructibility lies in its chemical bonds. PFAS contains many carbon-fluorine bonds, which are the strongest bonds in organic chemistry. As the most electronegative element in the periodic table, fluorine wants electrons — and badly. Carbon, on the other hand, is more willing to give up its electrons. “When you have that kind of difference between two atoms — and they are roughly the same size, which carbon and fluorine are — that’s the recipe for a really strong bond,” Dichtel explained.

Today, PFAS are mostly used for their chemical and thermal stability and capacity to repel water and grease. Variants are found in food packaging, the coating of nonstick pans, stain-resistant furniture and carpets, water-resistant fabrics, personal care products, electronics, automobiles, and the aerospace and defense industries.

With such pervasive use, it was inevitable that PFAS would spread throughout the environment. Studies identified high concentrations in soil, air, water, seafood, processed foods (likely due to the packaging), wild animals, and humans. In fact, according to the U.S. Agency for Toxic Substances and Disease Registry, “most people in the United States have been exposed to PFAS and have PFAS in their blood.”

Research into the effects of PFAS exposure in humans is ongoing. Epidemiological studies, summarized in the academic journal Environmental Toxicology and Chemistry, “revealed associations between exposure to specific PFAS and a variety of health effects, including altered immune and thyroid function, liver disease, lipid and insulin dysregulation, kidney disease, adverse reproductive and developmental outcomes, and cancer.” While animal studies do not always correlate with human health effects due to physiologic differences between species, laboratory animal research indicates PFAS can cause damage to the liver and the immune system as well as low birth weight, birth defects, delayed development, and newborn deaths.

Fifth Circuit

A three-judge panel of the 5th Circuit overturned a ban last month on plastic containers contaminated with a PFAS compound known to cause cancer. Inhance Technologies, based in Houston, Texas, produces approximately 200 million fluorinated high-density polyethylene (HDPE) plastic containers using a process that creates a toxic PFAS called PFOA. According to the Environmental Protection Agency (EPA), there is no safe level of exposure to PFOA. Neither the EPA nor, allegedly, Inhance were aware that the company’s fluorination process created PFAS until 2020, when an environmental group notified the agency.

The EPA ordered Inhance to cease manufacturing PFAS under TSCA section 5(f), which allows the EPA to regulate any “significant new use” of a chemical substance.

...EPA has determined that three of the PFAS (PFOA, perfluorononanoic acid (PFNA) and perfluorodecanoic acid (PFDA)) are highly toxic and present unreasonable risks that cannot be prevented other than through prohibition of manufacture. Therefore, under TSCA section 5(f), EPA is prohibiting the continued manufacture of PFOA, PFNA and PFDA that are produced from the fluorination of HDPE. EPA also determined that the remaining six of the nine PFAS chemicals manufactured by Inhance may present an unreasonable risk of injury to health or the environment and, under TSCA section 5(e), is requiring the company to cease manufacture of these chemicals, and to perform additional testing if it intends to restart production.

Inhance sued the EPA, arguing that its manufacturing process is not a “new use” because it has been creating fluorinated containers using the same process since 1983. The EPA countered that a “significant new use” is any use “not previously known to” the agency. When crafting rules to regulate PFAS in 2015, the EPA required companies to submit their prior manufacture or use of PFAS for approval—a step that Inhance did not take, as it claims it was unaware it was creating PFAS. Without approval for an “ongoing use,” the EPA treated Inhance’s process as a “significant new use” enabling the agency to use Section 5 for an expedited review.

• See this amicus brief for a more in-depth explanation of how the EPA handled the PFAS rule-making and exempted certain pre-existing uses from the rule.
• It is worth noting that Inhance’s claimed ignorance that it was producing PFAS is suspect because a 2011 scientific study, conducted three years before the EPA’s rule, found PFAS in their company’s containers. Additionally, according to The Guardian, “Since 2020, Inhance appears to have repeatedly lied to regulators and customers about whether PFAS leached from its containers, and for several years resisted EPA’s demands to submit its process for review.”

A 5th Circuit panel (made up of a G.W. Bush appointee, an Obama appointee, and a Trump appointee) sided with Inhance last month, vacating the EPA’s orders to stop producing PFAS. The judges did not dispute that the manufactured chemicals present an unreasonable risk of injury to human health and the environment but said that the EPA used the wrong rule to limit production:

...because Inhance did not possess “extraordinary intuition” or the “aid of a psychic” to foresee that the EPA would regulate the fluorination industry, Inhance faces being shuttered by the agency’s belated “discovery” of its process. Fortunately for Inhance, such foresight is “more than the law requires.” We therefore eschew the EPA’s interpretation of “significant new use” and instead adopt Inhance’s more straightforward interpretation of the statute. And that dooms the EPA’s orders at issue here, because Inhance’s fluorination process was not a significant new use within the purview of Section 5.

Instead, the EPA will have to use Section 6 to regulate chemicals, including PFAS, that are already in use...

Content cut off. Read original on https://old.reddit.com/r/Keep_Track/comments/1bzoopr/courts_legislatures_limit_regulation_of_hazardous/