As federal judges heard oral arguments Feb. 5 on the legal aspects of challenge to an Environmental Protection Agency rule restricting fluorination of plastic containers, a somewhat different, more market-based debate was also playing out in court filings.
BP Polymers LLC, a key provider of alternatives to fluorinated barrier layers on high density polyethylene containers, told the federal Fifth Circuit Court of Appeals in New Orleans that the market has viable alternatives, if the court decides in favor of the EPA.
"The timeline necessary to pivot to nonfluorination technology in the market is minimal, especially with EPA involvement," BPP said in a brief submitted to the court. "The transition to alternatives creates opportunities for new growth and competition in the marketplace, which are undeniable positives of our free-market, capitalist system."
The market arguments may take a back seat to the legal back-and-forth that a three-judge panel weighed Feb. 5, when lawyers for the EPA and Inhance Technologies LLC, which is challenging the agency, made their cases.
But the market ramifications were front and center for companies and industry associations weighing in.
At issue is a Dec. 1 EPA regulation that ordered Inhance Technologies LLC to stop its fluorination coating process for high density polyethylene containers and tanks until it can stop it from creating toxic per- and polyfluoroalkyl substances, even if inadvertently.
Inhance challenged that rule-making in the federal appellate court, arguing that EPA's "extreme" interpretation of chemical safety laws would force it into bankruptcy, close its 11 factories, cost hundreds of jobs and wreak havoc on manufacturing supply chains that use fluorination.
But EPA argued its strict new rule for Inhance was warranted, given that the PFAS created by Inhance's processes are dangerous to human health at even the smallest levels. It said Inhance would have to redesign its processes.