Petition to Fifth Circuit Court of Appeals Requests Halt of EPA’s Actions
HOUSTON, December 8, 2023 – Inhance Technologies today announced it is seeking review by the Fifth Circuit Court of Appeals to stop the one-sided orders issued by the U.S. Environmental Protection Agency (EPA) on December 1. If allowed to take effect, the orders will force Inhance Technologies to shut down its 11 barrier technology facilities across the U.S., disrupting downstream industries and related supply chains that rely on the company’s environmentally critical technology. Inhance Technologies seeks to expedite a review by the Court and to halt EPA’s actions prohibiting fluorination, which would otherwise become effective on February 28, 2024.
Inhance Technologies has employed the same fluorination technology since 1983, yet EPA is relying on its Significant New Use Rule (SNUR) to shut down the company’s 40-year-old practice – despite the fact that the technology is not “new” and produces minute amounts of long-chain PFAS unintentionally and only as impurities, which are explicitly exempt from the SNUR.
EPA also failed to provide Inhance Technologies with fair notice that it believed the SNUR applied to the company’s fluorination technology – an interpretation EPA adopted only in hindsight, two years after the final rule was published. Rather than declaring a new rule, EPA has in effect retrofitted the SNUR to enable its recent regulatory actions against Inhance Technologies.
Background
Under the Toxic Substances Control Act (TSCA), EPA may regulate a new use only if (1) the use is new (i.e., not ongoing) and (2) the new use is subject to the SNUR, which was never intended to cover uses that existed at the time the SNUR was proposed in 2015. EPA’s entire regulatory theory is based on the idea that a party subject to TSCA’s significant new use rules must submit a Significant New Use Notice (SNUN) at least 90 days before its use will be initiated – and that the new use cannot begin until after EPA has conducted its risk determination.
During the rulemaking process, EPA was explicitly asked to clarify whether its impurity exemption would apply in cases where long-chain PFAS are present as an unintended residue left over from the manufacture of a fluorinated polymer. In response, EPA stated that “[t]o the extent the chemical substance subject to the SNUR is only ‘unintentionally present’ at the point of manufacture, it is already exempt” as an impurity.