Last week, the United States Environmental Protection Agency (“EPA”) released a lab report on per- and polyfluoroalkyl substances (collectively “PFAS”) that reinforces the importance of companies fully understanding how their liquid products may interact with containers used for storage and transportation. The lab report describes a recent situation where fluorinated high molecular weight polyethylene (“HDPE”) containers and drums used to store and transport a pesticide product are purportedly leaching PFAS compounds into the products.  The situation described in the report also shines a light on the increasingly important role of “citizen science” in informing EPA’s investigation and possible enforcement of contamination concerns.

An environmental group, Public Employees for Environmental Responsibility (“PEER”), recently began purchasing and testing pesticide products for PFAS, and notified EPA when the group identified PFAS compounds in the product.  EPA’s independent testing of the affected pesticide product confirmed the presence of PFAS compounds and confirmed that no PFAS are registered product ingredients. Based on EPA’s testing of the pesticide, unused unfluorinated and fluorinated containers, and the fluorinated containers used to store the product, EPA concluded the fluorinated containers were likely the source of the PFAS contamination. 

EPA’s testing detected eight different PFAS compounds that purportedly leached from the fluorinated containers, some of the longer chain more persistent forms, and at levels ranging from 20-50 parts per billion, much higher than EPA’s current drinking water Health Advisory Level of 70 parts per trillion. 

Based on these initial results, EPA is now gathering more information about this possible contamination issue.  EPA is also testing different brands of fluorinated containers and drums to determine the extent of the PFAS leaching problem. EPA has used its Toxics Substance Control Act (“TSCA”) authority to obtain more information from the fluorination company about the fluorination process.  According to EPA, the pesticide manufacturer has begun to contact its customers about the PFAS contamination issue and is adjusting its product packaging.

Although EPA has only identified PFAS leaching in agricultural pesticides stored in one company’s fluorinated containers and drums, the problem may impact more than just agricultural pesticide products.  These containers are widely used by companies to store and transport liquid product.  Notably, between twenty and thirty percent of all agricultural pesticides are stored and transported in fluorinated containers – fluorination is known to increase the stability and resilience of the container, allowing longer shelf and storage life. 

This development is illustrative of the growing role of citizen science at EPA.  For example, PEER continues to purchase and test pesticide products for PFAS contamination and has identified five additional manufacturers that they believe may be selling PFAS-contaminated pesticides.  It is expected that EPA will continue to welcome support from citizen science groups to help identify potential environmental concerns for EPA investigation and possible enforcement.

Companies that use fluorinated containers and drums for their products should consider evaluating cross-contamination concerns between container and liquid product.  When conducting internal reviews of this kind, it is important to consult with experienced counsel regarding best practices for collecting and using data based on the company’s specific circumstances.

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