On April 6, 2023, the U.S. District Court for the District of Columbia dismissed a suit brought by the Center for Environmental Health (CEH) and Public Employees for Environmental Responsibility (PEER) to prevent Inhance Technologies USA (Inhance) from generating per- and polyfluoroalkyl substances (PFAS) when fluorinating plastic containers. As reported in our January 6, 2023, blog item, CEH and PEER sought a court order restraining Inhance from continued manufacture of PFAS in violation of a 2020 significant new use rule (SNUR) “requiring it to stop all distribution of fluorinated containers in commerce until and unless [Toxic Substances Control Act (TSCA)] requirements are met and directing it to inform purchasers and users of these containers of the dangers of exposure to [perfluorooctanoic acid (PFOA)] and other PFAS.” While CEH and PEER filed suit on December 27, 2022, the U.S. Environmental Protection Agency (EPA) filed suit on December 19, 2022, in the U.S. District Court for the Eastern District of Pennsylvania. According to the court’s April 6, 2023, opinion, Inhance filed a motion to dismiss the case brought by CEH and PEER, “arguing that the TSCA’s diligent-prosecution bar requires dismissal of this separate action.” The court states that the United States filed an amicus brief in support of Inhance’s motion, “arguing that this lawsuit ‘is a textbook case for application of the diligent prosecution bar.’” The court found that CEH and PEER failed to prove that the U.S. Department of Justice (DOJ) is not “diligently prosecuting” the action. The court reviewed the days between when DOJ filed its suit and CEH and PEER filed their suit, and found “[n]othing in the eight days between when DOJ filed its lawsuit and when Plaintiffs filed theirs suggests that Justice was not diligently prosecuting the case.” The court granted Inhance’s motion, dismissing the case without prejudice. The court noted that CEH and PEER have “the options of intervening in DOJ’s separate action or returning to court another day if Justice starts to slack at the reins.” According to an April 7, 2023, PEER press release, PEER and CEH will now move to intervene in DOJ’s suit in the U.S. District Court for the Eastern District of Pennsylvania.
