March 18, 2022

PFAS in Plastic Pesticide Containers: Latest Update

Holland & Knight Energy and Natural Resources Blog
Dianne R. Phillips
Energy and Natural Resources Blog

The U.S. Environmental Protection Agency (EPA) notified the fluorinated high-density polyethylene (HDPE) industry (manufacturers, processors, distributors, users and so-called disposers of fluorinated polyolefin containers) by letter on March 16, 2022, about the potential for per- and polyfluoroalkyl substances (PFAS) to form and migrate from these items. This risk was first flagged when Public Employees for Environmental Responsibility (PEER) contacted the Massachusetts Reclamation Board, the Massachusetts Department of Agricultural Resources' (MDAR) Division of Crop and Pest Services, other state agencies and EPA Region 1 about its test results indicating that there were unspecified PFAS in a pesticide used for mosquito control in fall 2020. The Boston Globe subsequently reported about the potential impact on thousands of acres of land in southeastern Massachusetts aerially sprayed for mosquitos.

In March 2021, EPA published its testing results, which showed that the PFAS were most likely formed from a chemical reaction during the container fluorination process, then leached into the pesticide product. Specifically, EPA had detected eight different PFAS from the fluorinated HDPE containers, with levels ranging from 20 to 50 parts per billion. EPA subsequently published additional data from specific samples of stored mosquito control pesticide products analyzed under its newly developed analytical method for oily matrices in October 2021. None of these tested samples contained PFAS at or above the method detection limit.

Consistent with the PFAS Strategic Roadmap published in October 2021, the purpose of EPA's letter is to raise awareness to industry of this issue in order to help prevent unintended PFAS formation and contamination and to outline the requirements under the Toxic Substances Control Act (TSCA) related to PFAS and fluorinated polyolefins, including tracking of PFAS under TSCA Section 5(a) Significant New Use Rules. EPA considers the manufacturing of certain PFAS from the fluorination of polyolefins to be a significant new use under TSCA. Thus, recipients are on notice that TSCA Significant New Use Notification requirements may apply and they should act accordingly. Time will tell whether this effort will generate sufficient additional information to assist EPA in its quest to eliminate unnecessary PFAS compounds from commerce.

In addition, EPA announced that it will also remove two PFAS first listed on the Safer Chemical Ingredients List in 2012 under EPA's Safer Choice program to better protect consumers and ensure that products certified under the program are free from PFAS. The compounds were initially listed in 2012, prior to receipt of additional data that has expanded the current understanding of the impact of these compounds.

The EPA's actions are part of a multifaceted approach to address PFAS and will likely come as welcome news to many in Massachusetts who worry both about PFAS contamination and the threat of mosquito-borne illnesses.

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