Recent changes in federal and state law pertaining to PFAS chemicals will have profound impacts on clean energy companies in the U.S. At the federal level, companies that import equipment or other articles with components that contain PFAS will have to comply with extensive reporting requirements. At the state level, companies will face total bans on the sale and distribution of such products and components.

These developments are important to companies in the clean energy space because certain types of PFAS materials, including, in particular, a group of materials known as fluoropolymers, are widely used in solar panels, high capacity batteries, hydrogen fuel cells, and wind turbines, as well as sheathing for power cables and coatings for electrical wire. All of these categories of equipment and components will be impacted by these changes in State and Federal law.

State Law

Two states – Maine and Minnesota – have recently enacted laws that will prohibit the sale and distribution in those states of any product or any product component that contains any PFAS chemical, regardless of whether the product is intended for industrial, commercial or consumer use. Under both states' laws, the regulator may exempt specific products or product categories if the regulator determines that the use of PFAS in those products is "currently unavoidable." Both states define a currently unavoidable use to mean a use that is "essential for health, safety, or the functioning of society" for which alternatives are not reasonably available.

Of critical importance, both states have imminent deadlines – March 1, 2024 – for providing comments on the designation of products as "currently unavoidable use" ("CUU"). Specifically, Maine is accepting proposals from industry for specific products or product categories to be designated as CUU (and therefore eligible for exemption from the ban on sale or distribution). Minnesota is soliciting comments on the criteria to be applied by the regulator in making CUU determinations. Because these regulatory efforts may ultimately determine whether clean energy projects in Maine and Minnesota are feasible, there is an urgent need for companies in the clean energy space to submit comments and participate in these rulemaking activities.

Also, it is important to be aware that several other states are poised to follow Maine and Minnesota in enacting laws to ban from commerce all products containing PFAS chemicals. Copycat bills have been introduced already this session in Illinois, Vermont, and Colorado, and similar bills are expected to be introduced in additional states. Since Maine and Minnesota are effectively setting the bar for other states, participation in the regulatory processes unfolding in those two states has elevated importance.

Federal Law

EPA recently issued final regulations under Section 8(a)(7) of the Toxic Substances Control Act (TSCA) that impose extensive reporting obligations on any company that, at any time since 2011, manufactured or imported any PFAS chemical, including PFAS chemicals imported as part of manufactured articles – such as equipment used in the clean energy industry.

Importantly, EPA's new PFAS reporting regulations do not include many of the exemptions that are typically found in regulations issued under TSCA. For example, there is no exemption for substances manufactured or imported as impurities or byproducts and no broad exemption for materials manufactured or imported only for research and development (R&D) purposes. In addition, there is no minimum production (or import) threshold that triggers reporting and no "de minimis" level of PFAS content below which reporting is not required. Thus, a company will be subject to the reporting requirements of the rule if, at any time since January 1, 2011, the company imported a piece of equipment containing one or more PFAS compounds, regardless of number of pieces of equipment imported (i.e., the quantity of PFAS imported) and regardless of the level or concentration of PFAS in each piece of equipment.

What Information Must be Reported

Companies subject to the new rule will be required to provide EPA with the information listed below, at a minimum, for each facility that imported an article containing components with one or more PFAS compounds:

  • The identities of the PFAS substances in the article;
  • The categories of use of the PFAS substances in the article;
  • The specific functions of the PFAS substances in the article;
  • The estimated maximum concentrations of the PFAS substances in the article; and
  • The annual import volume of the article containing the PFAS substance(s).

Importantly, this information must be reported for each year, starting in 2011, that articles with PFAS-containing components were imported by the facility, to the extent that such information is "known to or reasonably ascertainable by" the submitter. The regulations define this to mean "all information in the person's possession or control, plus all information that a reasonable person similarly situated might be expected to possess, control, or know." EPA further explains in the preamble to the final rule that the "known to or reasonably ascertainable" standard requires submitters to conduct a reasonable inquiry within the full scope of their organization and may also require:

inquiries outside the organization to fill gaps in the submitter's knowledge. Such activities may include phone calls or email inquiries to upstream suppliers or downstream users or employees or other agents of the manufacturer, including persons involved in the research and development, import or production, or marketing

Timeline for Compliance

Under the new rule, companies will have one year to collect the information required to be reported, followed by a six month period, ending in May 2025, during which reports must be submitted to EPA. Given the complexities of navigating multi-tiered global supply chains, companies in the clean energy space should act without delay to understand their obligations and initiate the investigations that will be needed to assure compliance with this new rule.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.