April 4, 2022
By Inside Washington Publishers
Public Employees for Environmental Responsibility (PEER) is suing EPA to force release of documents related to the agency’s investigation of per-and polyfluoroalkyl substances (PFAS) contamination in fluorinated high-density polyethylene (HDPE) containers, just weeks after officials warned that such contamination may violate TSCA.
In a complaint filed March 30 with the U.S. District Court for the District of Columbia, PEER says that it is still waiting for EPA to address a Freedom of Information Act (FOIA) request filed in October, and asks the court to “remedy EPA’s failure to respond to a routine request within the mandated time period.”
The FOIA request sought “all documents, records, emails, texts, instant messages, electronic chats, memos, notes, and letters” dating back to Sept. 1, 2020, “regarding the extent and significance of the PFAS contamination from fluorinated [HDPE] used for the insecticide Anvil 10+10 or for any other pesticide product of any kind or type.”
PEER initially discovered PFAS contamination in Anvil 10+10, a widely used mosquito-killing product, in December 2020, and a subsequent EPA investigation both confirmed the presence of perfluorinated chemicals and traced them to HDPE containers used to store the insecticide.
The agency later released more detailed findings from its investigation, an open letter to stakeholders that sought both to raise industry awareness of the issue, and notify manufacturers, importers, processors, distributors, users and disposers of fluorinated containers and plastics that PFAS migration to products stored inside them is possible — and could be subject to Toxic Substances Control Act (TSCA) enforcement action.
However, industry attorneys have raised competing interpretations of the letter, describing it as anything from aggressive “saber-rattling” to a friendly reminder of companies’ obligations under the law.
In addition to its request for documents directly related to the pesticide contamination, PEER is also seeking all communications since Sept. 1, 2020 regarding a statement EPA released that said the affected pesticide manufacturer has stopped shipment of products in fluorinated containers, and another release that said it was continuing to investigate potential impacts on health and the environment arising from the contamination.