EPA Puts Industry on Notice of Potential TSCA Violations for PFAS Contamination in Plastic Containers

By Elizabeth Reese, Nancy B. Beck, PhD, DABT, Gregory R. Wall & Matthew Z. Leopold
March 22, 2022

Does your company manufacture, process, distribute, use, or dispose of uorinated high-density polyethylene (HDPE) containers and similar plastics?

The Nickel Report process reviews aimed at identifying and eliminating possible per- and polyuoroalkyl substance (PFAS) contamination. In a March 16, 2022 open letter to HDPE manufacturers and users, EPA announced that the versatile plastic commonly used for storing and transporting pesticides, food products, personal care products, and a wide range of other products may be contaminated with PFAS—and that companies may be violating the Toxic Substances Control Act (TSCA).

Because TSCA civil penalties can be assessed up to $43,611 for each day a violation occurs, potentially aected companies should carefully consider EPA’s letter. In the letter, EPA explained that uorination—the process creating the high-performance barrier designed to reduce permeation through container walls and protect against degradation—could result in the unintentional manufacture of PFAS. The presence in HDPE containers (or any other products) of long-chain PFAS identied in EPA’s 2020 long-chain peruoroalkyl carboxylate (LCPFAC) Signicant New

Use Rule (SNUR) may be violations under TSCA. Although the LCPFAC SNUR contains a limited exemption for long-chain PFAS present only as byproducts, the exemption applies only to byproducts used as fuel, disposed of as waste, or from which component chemical substances are extracted for commercial purposes. Accordingly, any company whose process results in the manufacture of a long-chain PFAS identied in the LCPFAC SNUR that does not meet the byproduct exemption criteria must notify EPA 90 days prior to commencing manufacture (including import) or processing of the substance and wait for EPA’s review and approval.

Advance notication requirements also apply to any company that plans to import a product containing certain LCPFAC chemicals as part of a surface coating on the product.

Source: https://www.huntonnickelreportblog.com/2022/03/epa-puts-industry-on-notice-of-potential-tsca-violations-for-pfas-contamination-in-plastic-containers/