Per- and Poly-fluoroalkyl Substances (PFAS) Legislation and ACA Activities

Background

Per- and polyfluoroalkyl substances (PFAS) are a chemical grouping of fluorinated chemicals used as an additive in a wide array of products. With growing public concern about potential hazards of PFAS in drinking water and other sources, regulators initiated several programs to evaluate and eventually regulate PFAS. These programs could affect how companies manage PFAS on-site and in products. As restrictions become more common, Industry also faces challenges in disposing of existing stocks of firefighting foam and other products on site containing banned PFAS substances. Industrial sites are also challenged with conducting site remediation from legacy uses of firefighting foam or other industrial uses.

In October 2021, EPA published a PFAS Strategic Roadmap, providing a general timeline for several regulatory actions, in the roadmap, describing a comprehensive strategy, affecting water monitoring and treatment, site remediation and several other programs. The roadmap lays out a strategy to deal with chemicals on a case-by-case basis, rather than a general one-size-fits all approach. However, EPA has stated that it will group PFAS chemicals when making regulatory determinations. These might be grouped by functional use or structural similarities. The PFAS Reporting Rule would provide EPA needed data to develop groupings.

In October 2023, EPA finalized a rule that would require manufacturers and importers of defined PFAS to report data sets for manufacture and import in any amount over beginning on January 1, 2011 through the end of the year prior to the effective date. Since EPA has so far only published a prepublication version, the effective date has not been established. ACA participated in the Small Business Advocacy Review Panel for this rule and has commented on every phase since the initial proposal in January 2021. On November 25, 2022, EPA published an Initial Regulatory Flexibility Analysis and Updated Economic Analysis (IRFA) following the completion of the Small Business Advocacy Review (SBAR) Panel review. In the final rule, EPA declined to incorporate recommendations of the SBAR panel, while only making minor modifications to the proposal for the definition of PFAS with minor changes to reporting requirements for small businesses, manufacturers of articles and manufacture in small amounts pursuant to R&D activities.

At the state level, in July of 2021, Maine became the first state to adopt a law setting a timeframe for a general ban of intentionally added PFAS in products by January 2030 with a reporting requirement by January 1, 2023. The Maine legislature modified requirements in An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution, requiring reporting and eventual phase-out of all products with intentionally added PFAS. The new law extends the reporting deadline to January 1, 2025 and provides clarification related to chemical identification and reporting of amounts of PFAS in products.

Maine DEP (Department of Environment) initiated a rulemaking to further develop criteria for “currently unavoidable use” (hereinafter CUU) of PFAS in products. DEP also accepted comment identifying specific products for CUU designation. DEP intends to designate CUU by product or product types in 2024. ACA has applied for a general CUU designation for paint, coatings, sealants and adhesives.

Maine legislature is also considering LD 1537, an act that would revoke the general product registration requirement. Instead, manufacturers of products designated as CUU would be required to report. If finalized, the bill would also exempt several categories of products from the general ban on PFAS in products, taking effect January 2030. Product exemptions recognize federal regulation and necessity of some products. Maine’s legislative committee on Environment and Natural Resources has been considering the bill, while coordinating changes with Maine DEP. It is expected to pass the bill out of committee soon.

Minnesota is implementing a similar reporting requirement with a ban of all PFAS containing intentionally added PFAS by 2032. Minnesota is in the early stages of developing implementing rules with the implementing agency accepting preliminary comment through November 28, 2023. Minnesota Pollution Control Agency (hereinafter MPCA) recently conducted comment periods to assist with drafting three implementing rules affecting reporting requirements, fees and CUU designations. The final comment period closed in March 2024.

The Northeast Waste Management Officials’ Association accepted comments regarding a proposed model rule that would ban products with intentionally added PFAS within 3 years of adoption, while requiring time-limited exemptions for essential uses with take-back requirements.

Other states continue to introduce and debate PFAS bills that would require reporting from producers that intentionally add PFAS to enduse products as well as ban any future use of PFAS after a certain date. As described above, a significant issue is the “currently unavoidable use” exception and/or the “essentiality” of the enduse product. These two concepts are still being debated by the regulatory agencies that are writing the implementing regulations. These other states include New York, New Jersey, and Illinois as well as many others.

At the federal level, the Consumer Product Safety Commission has an open call for data about consumer products and exposure to PFAS. Senators Carper and Capito are developing a PFAS bill that would set times for EPA actions and support state-level water remediation programs and related research. The bill is likely to contain a definition of PFAS that would exclude fluoropolymers.

ACA Action

ACA is engaged with legislative advocacy with advice and direction of its Legislative and Government Affairs Committee and Product Stewardship Committee. ACA also has an ad-hoc PFAS working group that provides comment. ACA has submitted comments to and met with Maine DEP to discuss its process and requirements for granting extensions, common barriers to reporting of the paint and coatings and industry and the department’s plans for issuing final rules. ACA will continue to work with its members to engage in advocacy.

ACA Staff

Heidi McAuliffe
Senior Vice President, Government Affairs

Riaz Zaman
Senior Counsel, Government Affairs