EPA: ‘Perpetually chemical substances’ in pesticide barrels could also be unlawful

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The presence of so-called forever chemicals in pesticides may stem from a violation of federal chemical law, according to an announcement today from EPA.

In an open letter this morning, EPA announced several actions amid an ongoing investigation scrutinizing plastic containers fluorinated with PFAS. Those chemicals have leached into pesticides, an issue the agency linked to high-density polyethylene (HDPE) barrels last year.

Now, EPA says the contamination may constitute a violation of the Toxic Substances Control Act, which regulates chemicals nationwide. EPA issued the letter to HDPE manufacturers, processors and other relevant parties, informing them that the presence of per- and polyfluoroalkyl substances may fly in the face of federal law. The chemicals can be formed as byproducts in the containers.

“As the agency continues to determine the potential scope of the use of this fluorination process outside of its use for pesticide storage containers, EPA is issuing this letter to notify industry of their statutory obligations under TSCA and to help prevent unintended PFAS contamination,” the agency wrote.

Assistant Administrator for the Office of Chemical Safety and Pollution Prevention Michal Freedhoff touted the action in a statement emphasizing EPA’s moves to protect the public.

“Today’s action will help ensure that responsible parties are held accountable for any future PFAS contamination affecting communities,” Freedhoff said.

EPA has been investigating the container issue since last December, when the nonprofit group Public Employees for Environmental Responsibility found elevated levels of PFAS in pesticides sprayed in Massachusetts, including Anvil 10+10, a widely used mosquito repellent (E&E News PM, Jan. 15 , 2021). Subsequent tests found PFAS present in additional pesticides, while EPA testing confirmed that the chemicals were in Anvil 10+10, with implications for a number of states (Greenwire, March 26, 2021). The manufacturer of Anvil has since changed the barrels it uses for the pesticides.

The agency’s efforts soon showed that the chemicals had not intentionally been added to the pesticides. Instead, they had leached into the pesticides from the HDPE barrels used to transport them.

In August, the Food and Drug Administration sounded the alarm over concerns that such packaging could also be used to store food products and ingredients. FDA sent an open letter warning to manufacturers that fluorinating packaging after it has been moulded, or in the presence of water, is not allowed under current federal policy.

Only fluorine gas and nitrogen can be used during the fluorination process, FDA warned, as using other gases like oxygen and argon can cause those gases to attach to carbon atoms and create PFAS (Greenwire, Aug. 6, 2021).

Today’s action marks the first step EPA has taken toward addressing the container issue, as well as emphasizing the possible breach of TSCA. Notably, EPA says that PFAS created during the fluorination process would not be exempt from existing regulations about “new uses” of chemicals, even though the chemicals are created as byproducts of the fluorination process.

“Entities may not commence manufacturing (including import) or processing for the significant new use until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination,” the letter says.

The agency also announced it is removing two chemicals from a list of substances provided to the public as safer alternatives to toxics of concern as an additional effort to crack down on PFAS contamination.

Those two chemicals were listed in 2012 “based on the data available and the state of the agency’s knowledge at the time,” EPA said in a statement. Growing concern about health implications has led to their removal.

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