PFAS Ruling Brings Renewed Attention to Plastic Fluorinated Lubricant Containers
A federal appeals court has upheld the U.S. Environmental Protection Agency’s (EPA) designation of two per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the federal Superfund law. The decision is bringing renewed attention to an issue familiar to many lubricant manufacturers: fluorinated high-density polyethylene (HDPE) containers.
On Aug. 18, 2026, the U.S. Court of Appeals for the District of Columbia Circuit unanimously upheld EPA’s 2024 rule. The rule designates perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Chamber of Commerce of the United States v. EPA, No. 24-1193 (D.C. Cir. Aug. 18, 2026).
The ruling does not prohibit fluorinated plastic packaging. It also does not establish CERCLA liability for lubricant manufacturers that use fluorinated containers. However, it adds another regulatory consideration as EPA continues to scrutinize PFAS that can be unintentionally created during certain plastic-container fluorination processes.
D.C. Circuit Decision
A coalition led by the U.S. Chamber of Commerce challenged EPA’s rule on several grounds. Among other arguments, the coalition said EPA misinterpreted CERCLA Section 102(a) and acted without sufficient scientific and economic certainty.
The three-judge panel rejected those arguments and upheld EPA’s interpretation of CERCLA. Importantly, the court reached that conclusion independently rather than deferring to EPA. The court found that CERCLA allows EPA to act when a substance presents the possibility of substantial danger, while emphasizing that the danger still must be serious and real rather than hypothetical.
The petitioners may seek rehearing or Supreme Court review, but the PFOA and PFOS designations remain in effect unless further judicial or congressional action changes the outcome.
The designation sets a one-pound reporting threshold for releases of PFOA or PFOS under CERCLA Section 103 and Section 304 of the Emergency Planning and Community Right-to-Know Act. That threshold determines when certain reporting requirements apply. It does not mean releases below one pound are automatically exempt from potential CERCLA liability.
The designation also allows PFOA and PFOS to form the basis for CERCLA response actions and cost-recovery claims by EPA, states and private parties.
Importantly, designation alone does not establish liability. A CERCLA claim generally requires, among other things, a covered facility, a release or threatened release, response costs and a defendant that falls within one of CERCLA’s categories of potentially responsible parties.
Why Lubricant Containers Are Involved
Fluorination has long been used to improve the barrier properties of HDPE containers. Treating a plastic surface with fluorine can reduce permeation and panel deformation while improving chemical resistance. These characteristics have made fluorinated HDPE useful for packaging lubricants, fuels, automotive products, pesticides, cleaners and other industrial chemicals.
EPA began investigating the process after PFAS were detected in a pesticide stored in a fluorinated container. Testing later found that certain fluorination processes can unintentionally create PFAS, including PFOA, perfluorononanoic acid (PFNA) and perfluorodecanoic acid (PFDA). Those substances also can migrate from the container wall into the product.
EPA issued an open letter to the fluorinated-polyolefin supply chain in March 2022, released a risk assessment in November 2023 and published an analytical method in February 2024 for detecting PFAS directly in HDPE container walls.
For lubricant manufacturers, an important distinction is that these PFAS generally are not being intentionally added to the product or packaging. Instead, certain PFAS may be created as byproducts of the fluorination process itself.
The Downstream Liability Question
The ruling leaves unresolved a broader concern for industries that receive or handle PFAS-containing materials: potential liability for companies that did not manufacture or intentionally use PFOA or PFOS but receive those substances through products or waste streams.
EPA’s April 2024 CERCLA enforcement discretion policy identifies several categories where the agency generally does not expect to pursue federal enforcement. Those include certain public water and wastewater systems, municipal landfills, publicly owned airports and local fire departments and farms where biosolids are applied to land.
Commercial lubricant manufacturers and fillers are not included in those categories. EPA has said it intends to focus enforcement on entities that significantly contributed to PFAS releases, including PFAS manufacturers, companies that used PFAS in manufacturing, federal facilities and other industrial parties.
The policy therefore should not be viewed as an enforcement safe harbor for ILMA members. Even when EPA chooses not to pursue a particular party, state enforcement or third-party CERCLA claims may still be possible.
EPA acknowledged this broader passive-receiver concern in September 2025, when it said the most durable solution would be congressional action. No general federal statutory exemption for passive receivers has been enacted.
For lubricant manufacturers, the immediate question is not whether using a fluorinated container automatically creates CERCLA liability — it does not. The more relevant questions are whether a particular fluorination process generates PFOA and, if so, where that PFOA may ultimately go through product use, recycling, disposal or other waste streams.
EPA's Continuing Scrutiny of Fluorination
ILMA members may recall EPA’s dispute with Inhance Technologies, a major supplier of fluorination services.
In December 2023, EPA issued orders under Section 5 of the Toxic Substances Control Act (TSCA) that effectively would have prohibited Inhance from continuing fluorination processes that generated specified PFAS.
In March 2024, the 5th U.S. Circuit Court of Appeals vacated those orders. The court held that EPA could not treat a decades-old fluorination process as a “significant new use” simply because the agency had only recently discovered that the process generated PFAS. Inhance Technologies, L.L.C. v. EPA, 96 F.4th 888 (5th Cir. 2024).
The decision was significant for ILMA members because an interruption in fluorination services could have affected the availability of certain containers used by lubricant manufacturers.
However, the court did not conclude that EPA lacked authority to address the issue altogether. It specifically pointed to TSCA Section 6, which gives EPA a process for regulating existing chemical substances and uses after evaluating whether they present unreasonable risks.
EPA subsequently began pursuing that avenue. In July 2024, the agency granted a TSCA Section 21 petition asking it to address PFOA, PFNA and PFDA generated during plastic-container fluorination.
On Sept. 30, 2024, EPA requested information on fluorinated containers in the United States, including their uses, alternatives to processes that generate PFAS and possible measures to reduce associated risks. 89 Fed. Reg. 79,581 (Sept. 30, 2024).
Unlike the Section 5 approach rejected by the 5th Circuit, regulation under Section 6 would require EPA to evaluate unreasonable risk and proceed through notice-and-comment rulemaking. The agency also would need to consider factors such as costs, available alternatives and economic consequences.
In short, the 5th Circuit closed off one regulatory path, but it did not prevent EPA from continuing to examine fluorination under TSCA.
What ILMA Members Should Consider
ILMA is not recommending that members discontinue fluorinated HDPE packaging. Neither the court decision nor EPA’s findings establish that every fluorinated container contains PFOA.
Members that use fluorinated packaging may, however, want to better understand their supply chains. Questions for suppliers may include:
- Whether the containers are fluorinated and which process is used.
- Whether that process is known to generate PFOA, PFNA or PFDA.
- Whether the supplier conducts PFAS testing.
- Whether alternative barrier technologies are available.
Members also may want to review packaging specifications and supplier certifications to determine whether they identify the fluorination process used or address the presence or generation of PFAS.
Where PFOA may be generated, companies may want to understand how affected containers and related materials move through their operations and ultimately are recycled or disposed. That review can help identify where PFAS may enter product, manufacturing or waste streams and whether additional supplier information, testing, contractual protections or waste-management practices should be considered.
The objective at this stage is information gathering — not an assumption that using fluorinated packaging creates CERCLA liability.
Members also should not assume that every container described as fluorinated has the same PFAS profile. Process design and operating conditions can affect PFAS generation, and alternative technologies exist or are under development.
Members also should not assume that every container described as fluorinated has the same PFAS profile. Process design and operating conditions can affect PFAS generation, and alternative technologies exist or are under development.
State PFAS Product Laws Reach Fluorinated Containers Directly
CERCLA is not the only legal framework relevant to PFAS in packaging. State PFAS laws also may apply, and at least one state expressly addresses fluorinated containers.
Maine’s PFAS in products law, 38 M.R.S. § 1614, prohibits the sale of certain product categories containing intentionally added PFAS. The law also can apply when the product itself does not contain intentionally added PFAS but is sold, offered for sale or distributed in a fluorinated container or another container containing intentionally added PFAS.
That distinction is particularly important for ILMA members because Maine treats air care products and automotive maintenance products as cleaning products under the regulation. As a result, an automotive maintenance product sold in a fluorinated container may fall within the prohibition even when PFAS was not intentionally added to the product itself.
The restrictions for covered product categories took effect Jan. 1, 2026. A broader prohibition is scheduled to take effect Jan. 1, 2032, for other products containing intentionally added PFAS unless Maine determines through rulemaking that a use qualifies as a currently unavoidable use.
Maine’s law also contains exemptions, including for motor vehicles and certain equipment and materials used in manufacturing. Members should evaluate whether an exemption applies before assuming a product is covered.
Other states have modeled PFAS product laws on Maine’s statute, but definitions, exemptions and coverage vary by jurisdiction.
The key takeaway is that state PFAS requirements must be evaluated separately from CERCLA. A fluorinated container can raise state compliance questions even when PFAS was not intentionally added to the product itself.
An Important Limitation and What Comes Next
The CERCLA rule upheld by the D.C. Circuit designates PFOA and PFOS as hazardous substances. It does not designate PFAS as an entire class.
PFNA and PFDA, the other two substances involved in EPA’s fluorinated-container proceeding, are not covered by this designation.
However, additional CERCLA activity is possible. In September 2025, EPA announced plans to develop a framework for how it would evaluate future hazardous-substance designations under CERCLA Section 102(a), including consideration of the costs associated with proposed designations.
That framework would not itself designate PFNA, PFDA or other PFAS as hazardous substances, but it could influence how EPA evaluates additional substances in the future.
ILMA will continue monitoring EPA’s TSCA proceeding, developments following the D.C. Circuit’s CERCLA decision, potential future hazardous-substance designations and expanding state PFAS product and packaging requirements.
The Association will pay particular attention to developments affecting the availability, cost, recyclability and regulatory treatment of fluorinated lubricant packaging.
Members with questions should contact ILMA Counsel Jeff Leiter at jleiter@bmalaw.net or Jorge Roman at jroman@bmalaw.net.
