Pitfalls of PFAS
At the recent EMLF Fall Symposium in Lexington, Kentucky, Jennifer Simon discussed the significance of identifying where PFAS is used in energy operations and the legal complexities surrounding PFAS identification and regulation.
Like with many industries, PFAS may not immediately come to mind in the context of energy production, but these chemicals nevertheless play unexpected yet essential roles. Their uses include hydraulic oils, production fluids, insulation materials, sealing materials, as well as within many product components such as valves. Knowing exactly where PFAS are present—and just as importantly, where they are absent—in a company’s operations is crucial for preparing for a PFAS-limited future and for making informed decisions about reporting obligations and investigation and remediation efforts.
Of immediate note are state and federal reporting requirements and state-level product bans. At the federal level, PFAS reporting under TSCA has now been extended by six months, to begin in July 2025, with a deadline of January 2026. This requirement applies to manufacturers of chemical substances as well as importers of products containing intentionally added PFAS. At the state level, under M.S.A. § 116.943, manufacturers and importers of PFAS-containing products sold into Minnesota must meet mandatory reporting requirements by January 1, 2026, to continue selling those products into the state. And, beginning in 2032, no products containing intentionally added PFAS may be sold in either Minnesota or Maine unless they receive a critical use exemption. See Maine's Public Law 2023, c. 630, and Minnesota’s Amara's Law, Minn. Stat. § 116.943.
Knowing whether any essential products are captured by these requirements is important not only to satisfy a company’s own reporting obligations but for future planning, to ensure there are no gaps in product availability due to upstream suppliers’ compliance. Understanding the extent to which PFAS are used in a company’s operations is also critical for responding to investigation and permitting requests and addressing any potential liability. With the low thresholds established under the Safe Drinking Water Act, detection of PFAS is nearly ubiquitous. An informed and well-supported understanding of a company’s own operations is critical for parsing risk and liability. And advanced strategic planning is essential to avoid permitting and sampling minefields.
In this rapidly evolving regulatory landscape, staying current on both the rules and the science is vital to avoid surprises that could impede operations, create sudden obligations, or generate unexpected liability.
KMCL provides this information for educational purposes only. This article should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers.