Will Industry Push Back Proactively on Potential PFAS-Use Restrictions?

Goldberg Segalla

Goldberg Segalla

Over the past seven years, our blog has reported extensively on PFAS developments, litigation, and regulations — most of which has focused on the attention surrounding potential risks associated with PFAS, and the scrutiny given to that chemical class by the U.S. Environmental Protection Agency.

Today we are providing a wrinkle seldom seen recently in the PFAS world: a proposed law that would protect PFAS uses.  

This week, state of Indiana senators chose to abandon a bill that reportedly would have excluded thousands of the most widely used PFAS chemicals from the state’s definition of that chemical class. House Bill 1399 would have carved out more than 5,000 PFAS from being defined as “PFAS” by the state and its environmental rules board. The proposal sought to exempt the chemicals in the event state or federal regulators seek to ban them in the future.  The bill previously passed the House chamber in Indiana by a vote of 64-30, along party lines.

Proponents of the bill, which included many in the chemical manufacturing industry, said the definition change is needed to preserve uses of PFAS in “essential” items like lithium batteries, laptop computers, semiconductors, pacemakers and defibrillators. 

Noticing differences between PFAS, Sen. Mark Messmer, R-Jasper, said “it’s not appropriate” to regulate all PFAS the same, though. 

“We must be mindful that a number of industries utilize PFAS chemistries,” such as mining, building construction, drug manufacturing, biotech, energy and technology sectors. “The bill is designed to preserve the potential uses for these products and uses while focusing on future potential regulatory efforts on the PFAS chemistries that are of potential concern,” Messmer continued.

An Indiana Manufacturers Association’s (IMA) spokesperson testified that there are not good alternatives for PFAS in manufacturing essential items like medical devices and pharmaceuticals, as well as in the automotive and steel industries.

“This definition (in the bill) ensures a robust, stable and domestic supply chain remains intact.”

The spokesperson also stated that although Indiana is unlikely to ban PFAS chemicals, “it’s a given” that the federal government will require states to regulate PFAS, “and we want to be prepared.”

“Manufacturers prefer to operate in environments of certainty and predictability because we plan for investments years down the road. And our investments consist of technology and facilities that are not able to be moved easily, therefore making regulatory certainty and predictability of utmost importance and the reason that we need this bill now.”  

Three representatives from the American Chemistry Council (ACC) — an industry trade association for chemical companies — also testified in support of the bill.

“Not all PFAS chemistries are the same, and therefore, it’s not appropriate to regulate them all the same,” said an ACC speaker. “This bill strikes the right balance by focusing on those PFAS chemistries that are most likely to cause adverse health effects, while preserving products and uses that are vital to Hoosiers and Hoosier industries.”

The bill has also received support from the Indiana Chamber of Commerce and Indiana corn and soybean growers.

Critics of the bill said the legislation could allow products that contain PFAS to be “wrongly” labeled as “PFAS-free,” pointing to possible unintended consequences.

“Think about the broader picture and the long-term effects that passing the bill can have,” said one skeptic. “We’re thinking about the benefits of bringing a few more jobs. But let’s also think about the hidden costs of the use of PFAS, which are the health effects that, actually, taxpayers are paying through all the costs of remediation of water.” Some noted that companies in states that must abide by strict PFAS wastewater regulations may move to a state like Indiana that exempts the PFAS those companies use from such laws. 

Although it seems that most who testified on the bill — both for and against — agreed that “essential” uses of PFAS should be exempt until better alternatives are available, environmental advocates argued for lawmakers to adopt specific exemptions in the current law as opposed to changing the definition to carve out thousands of PFAS chemicals. 

State senators in support of the bill have indicated that they may revisit it depending on developments in federal regulation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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