Lawsuit Accuses EPA of Hiding Critical Data About Harms of 'Forever Chemicals'

A federal lawsuit filed Thursday by a pair of environmental advocacy groups accuses the U.S. Environmental Protection Agency of "wrongfully withholding test data and other vital information" regarding the presence of so-called "forever chemicals" in millions of fluorinated plastic containers.

The lawsuit—filed in the U.S. District Court in Washington, D.C. by Public Employees for Environmental Responsibility (PEER) and the Center for Environmental Health (CEH)—argues that the EPA is violating Toxic Substances Control Act (TSCA) disclosure requirements by improperly classifying health and safety data as trade secrets.

Referring to per- and polyfluoroalkyl substances—commonly known as forever chemicals because they do not biodegrade and accumulate in the human body—the suit also accuses the EPA of "denying the public access to the results of testing showing the levels of PFAS in fluorinated plastic containers and their contents along with the identities of the products in which these toxic materials are present."

PEER and CEH said that after they filed a Freedom of Information Act request "for documents shedding light on the health risks associated with PFAS in fluorinated containers," the EPA granted trade secret protection sought by Inhance Technologies, LLC.

Fluorination involves the high-temperature application of fluorine gas to plastic containers to make them more resistant to discoloration and permeation by solvents.

As PEER explained:

PFAS chemicals are formed during the fluorination of high-density polyethylene plastic containers by Inhance Technologies, LLC of Houston, Texas. Inhance is the sole U.S. company conducting this type of fluorination. Studies by EPA, independent researchers, and Inhance itself show that PFAS leaches from the walls of containers into their contents, thus exposing millions of people to PFAS without their knowledge...

Inhance fluorinates 200 million containers a year which are used to package diverse products ranging from fuels to foodstuffs, cosmetics, and cleaning products which consumers and workers use on a daily basis.

"EPA has found that these containers constitute a public health threat, a long-awaited determination that also should encompass the public's right to know," CEH counsel Bob Sussman, who is also a former senior EPA official, said in a statement announcing the new lawsuit.

Used in a broad range of products from clothing to nonstick cookware to firefighting foam, PFAS is linked to cancers of the kidneys and testicles, low infant weight, suppressed immune function, and other adverse health effects. It is found in the blood of 99% of Americans and a similar percentage of people around the world.

"Given the unquestionably major public health stakes, EPA should be stepping up and maximizing access to health and safety data, but the agency is disclosing vital information only grudgingly and with lingering secrecy even though disclosure is mandated by TSCA," Sussman lamented.

Colleen Teubner, PEER's litigation and policy attorney, asserted that "the cloak of confidential business information cannot be used to hide health and safety studies as EPA is currently doing."

"By sitting on this critical information, EPA is advancing the private interests of a corporate violator and shirking its public health responsibilities," she added.

The new lawsuit follows a December 2022 court filing by PEER and CEH seeking to stop Inhance from generating forever chemicals during the manufacture of plastic containers.

Thousands of PFAS-related lawsuits have been launched in U.S. courts over recent decades.