You are here
(Editor’s Note: 3E is expanding news coverage to provide customers with insights into topics that enable a safer, more sustainable world by protecting people, safeguarding products, and helping businesses grow. Deep Dive articles, produced by reporters, feature interviews with subject matter experts and influencers as well as exclusive analysis provided by 3E researchers and consultants.)
Per- and polyfluorinated substances (PFAS) are a group of chemicals used to make fluoropolymer coatings and products that resist heat, oil, stains, grease, and water. Fluoropolymer coatings are found in a variety of products throughout the supply chain. And as the state of Maine is learning, the complexity of monitoring and managing that supply chain is at the heart of pushback on PFAS regulations.
First State to Regulate Commercial/Industrial Use
Maine was the first U.S. state to attempt to regulate the use of PFAS in all industrial, commercial, and consumer products. Initially, the state pushed for a January 2024 implementation of a law requiring manufacturers to disclose PFAS in products sold in the state, effectively banning PFAS in most of those products by 2030. The PFAS in Products Program was initially enacted in Public Law 2021, c. 477, An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution (LD 1503, 130th Legislature).
After considering a number of proposed amendments to the original legislation as well as comments received from stakeholders, the Maine Legislature enacted Public Law 2023, c. 138, An Act to Support Manufacturers Whose Products Contain Perfluoroalkyl and Polyfluoroalkyl Substances (LD 217, 131st Legislature). Manufacturers of products containing PFAS now have until January 2025 to report them. In addition, the Environment and Natural Resources Committee has raised the possibility of enacting yet another bill in 2024 that encompasses further changes.
3E News recently sat down with two attorneys who are following the developments in Maine and the impact they could have on similar regulations in other states.
Attorney Todd M. Thacker, an experienced litigator with Goldberg Segalla, represents clients in toxic tort, asbestos litigation, insurance coverage, and business and commercial matters. He recently published a blog post titled, “Maine’s Difficulties Implementing Its PFAS Law Could Foreshadow Similar Issues Nationwide.” According to Thacker, an issue raised by the Bangor Region Chamber of Commerce during the comment period for Maine’s regulation highlights a major stumbling block for PFAS bans.
“Many federally regulated products and product components with intentionally added PFAS cannot simply be switched for products that do not [have them],” Thacker wrote. “For example, the Federal Aviation Administration must approve every product and component that goes into an aircraft, and service and maintenance operations are limited to manufacturers’ manuals, which dictate what products the company uses and how.”
In comments addressed to the Maine Board of Environmental Protection, Deb Neuman, President and CEO of the Bangor Region Chamber of Commerce, wrote: “This law has risen to the top in terms of concerns and questions we have received from our nearly 800 chamber member businesses throughout the 21 community regions we serve.”
These businesses, in every sector and of every size, are concerned that Maine’s PFAS laws could impact their relationships with global suppliers, come at great cost if they must test every product and component for PFAS, and impact their ability to fulfill federal contracts.
“One of our members, C&L Aviation, uses thousands of parts in their aircraft. These parts are purchased from manufacturers or are used parts taken from other planes,” explained Neuman. “Will they be required to verify and/or test every nut, bolt, and engine component for PFAS? Compliance with that requirement would be extremely difficult. What about used parts?”
Neuman expressed the concern of Chamber members, who worry their suppliers will have no other choice than to stop doing business with Maine companies.
“It’s not just about reporting any substance that has PFAS,” noted George H. Buermann, vice chair of Goldberg Segalla’s Environmental Law practice, who advises clients on complex environmental regulatory and compliance matters and litigates environmental and toxic tort disputes across the country. “It’s about the complexity of the supply chain. A vehicle, an aircraft, has hundreds if not thousands of parts. Manufacturers are required to figure out – in their entire supply chain – where PFAS might be found.”
Given that herculean task, extending the deadline by a year to 2025 “is not really that big of a move,” Thacker pointed out. Companies need to know now what’s in their products, he added, noting that many are scrambling, and smart companies have begun investigating the components that go into their products.
“It's easy for legislators to say, ‘This needs to happen.’ It’s more difficult for companies, who are boots on the ground, to put it into practice,” said Thacker. Certain federal agencies mandate the use of specific products, but those products contain PFAS, which – because of new regulations – adds additional complexity to compliance,” he added. “Companies are telling regulators: You are literally putting us in a Catch-22.”
Maine’s difficulties with its PFAS law may foreshadow problems other states could have in implementing similar laws. “Given the modern economy’s deep interconnectedness, it appears not to be so easy for states to wave their legislative wands and make PFAS disappear,” wrote Todd Thacker in the blog.
Maine is not the only state with an upcoming PFAS reporting requirement. Earlier this year, Minnesota passed a law banning the sale of certain products with PFAS that is scheduled to take effect on 1 January 2025. And, on 1 January 2026, product manufacturers must provide the Minnesota Pollution Control Agency with a list of products containing intentionally added PFAS.
Thacker and George Buermann say that Minnesota is the next state to watch, but other developments could impact the future of PFAS regulations – and many companies – as well.
They pointed specifically to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund, which was created to identify sites where hazardous materials threaten the environment and or public health as a result of leaks, spills, and releases. CERCLA calls for the identification of potentially responsible parties (PRPs) and holds them financially accountable whenever possible, ensuring cleanup of the Superfund site either by the federal government or the responsible parties.
In a proposed rule published 6 September 2022, the EPA proposed to designate two PFAS –perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers – as hazardous substances under CERCLA. The EPA’s Spring 2023 Unified Agenda, released on 13 June 2023, extends EPA’s estimated publication of a final rule from August 2023 to February 2024.
“Companies, as part of an audit, should keep CERLA in mind,” said Buermann. “Past historical usage is huge too, not just current or potential future usage. The potential liability, cleanup and cost, and recovery actions” are all of heightened concern when CERCLA comes into play. The EPA and U.S. attorney generals are ready to start enforcing PFAS laws as soon as they take effect, warned Buermann, and when CERCLA joins the mix, the potential liability, fines, and lawsuits that could result from violations are no joke.
What You Can Do to Ensure Smooth(er) Sailing
If your company has concerns about a state’s PFAS regulations (or any pending regulations), here are some action items for you:
Attend hearings or send comments when new legislation or regulations are proposed. Both attorneys point to specific cases where stakeholder and industry lobbying and comments impacted who was exempted from enforcement actions and timelines for enforcement. “State rulemaking bodies will listen to concerns raised during the complaint process, especially if those complaints are founded in solid objections and/or significant economic consequences,” Todd Thacker explained.
Utilize compliance solutions like 3E to ensure regulatory obligations are met as well as improve chemical and workplace safety, product safety and stewardship, and supply chain transparency.
Consult internal experts or retain an environmental consultant who is knowledgeable about state and federal regulations and can help you navigate the ever-changing regulatory landscape.
Conduct an audit to determine your exposure under the proposed regulation. As George Buermann pointed out, “This is not the longest strip of runway. Make your own runway. Start preparing as soon as possible.”
Reach out to suppliers. Do they know what’s in their products? Will they share that information with you? Some suppliers might claim they cannot share that information because it is a trade secret. That is when you…
Consider consulting an attorney if suppliers refuse to share information about their manufacturing process or components in their products. The attorney can draw up contracts with those suppliers that indemnify your company against future compliance violations or other regulatory action (i.e., pass the risk for noncompliance onto the supplier). The attorney can also help craft an argument to help you obtain an exemption or filing an extension if appropriate.
About the author: Sandy Smith, Senior Reporter, 3E, is an award-winning newspaper reporter and business-to-business journalist who has spent 20+ years researching and writing about EHS, regulatory compliance and risk management and networking with EHS professionals. She is passionate about helping to build and maintain safe workplaces and promote workplace cultures that support EHS. She has presented at major conferences and has been interviewed about workplace safety and risk by The Wall Street Journal, CNN and USA Today.
Top