Industry Sees Mixed Messages In EPA’s PFAS Enforcement Warning

March 29, 2022
By Inside Washington Publishers

EPA’s recent announcement that it could treat per- and polyfluoroalkyl substances (PFAS) contamination in certain fluorinated plastics as a TSCA violation is sparking confusion among industry attorneys over the agency’s intentions, with some calling it a warning of imminent action and others a friendly reminder of the law’s requirements. “What some stakeholders are probably trying to figure out is what does this mean, how do we read these tea leaves? … Is this a shot across the bow?”

Clinton-era chemicals chief Jim Aidala, who is now a consultant with law firm Bergeson & Campbell, told Inside TSCA in a recent interview. Aidala was describing reactions to EPA’s March 16 open letter addressed to makers and users of fluorine-treated plastics known as fluorinated polyolefins or high-density polyethylene (HDPE), which noted that certain long-chain PFAS “that are found to be present in or on fluorinated polyolefins may be subject to [Toxic Substances Control Act (TSCA)] regulations and enforcement.” EPA released the letter as part of its response to PFAS contamination in a widely-used pesticide that was traced to fluorinated storage containers but stopped short of explicitly vowing to take enforcement action over that incident or similar contamination.

Rather, it wrote that “long-chain PFAS as defined in EPA’s 2020 long-chain perfluoroalkyl carboxylate (LCPFAC) Significant New Use Rule (SNUR), that are found to be present in or on fluorinated polyolefins, may be subject to TSCA regulations and enforcement.” Aidala said that wording left unclear whether the announcement was meant to be simply informational or more threatening “saber-rattling” from the agency.