West and ACC also are aware that the battle over PFAS in the U.S. may come more at the state rather than at the federal level. There were, after all, more than 270 PFAS-related bills introduced by states, just during 2023.
"The states are extremely active. A lot of our members think that the states are more of an existential threat than any act of [a federal Environmental Protection Agency] program that is happening right now, or anything the [Food and Drug Administration] is considering," he said.
And ACC, West added, is an organization that has a large team of state professionals watching all the state houses. So they can advise their members on which proposals are likely to die on the vine and which are actual threats that must be prioritized.
California, for example, often is perceived as a state looking to ban everything, but he said Gov. Gavin Newsom actually vetoed four PFAS-related bills because there wasn't an administrative program in place to oversee implementation. That would just create an environment where trial lawyers would be looking to flood the courts with legal action.
"What I think that means — and this is just Jay West talking — is that we're going to see the [California] Department of Toxic Substances Control take up these uses for the reporting, which is at the top of the state's safer product program," he said. "This could be a good or a bad thing, because it requires a thorough alternatives analysis. Not just for the use of the PFAS, but for any alternatives that the government of California may say are available."
Looking at other states, Colorado has what West described as a "rolling ban model," where different products containing intentionally added PFAS are banned from use and distribution.
"One that might get your attention involved [is] oil and gas products," he said. "When that first showed up, we were very concerned because the way it was constructed in the bill, it could be read to include any equipment [used underground] and any of the processing equipment that was just above, and used for refining and preparing for transportation of the [oil] coming out of the ground.
But ACC was able to work with a sponsor of the bill, along with representatives of Colorado's oil and gas industry, to get the bill focused more on PFAS chemicals of concern, rather the fluoropolymers used in the bushings, gaskets and O-rings that are ... inside the actual well.
Maine is one state that has escalated its legislative efforts toward PFAS, and may see consequences going forward.
West said the state put in place legislation where it said the manufacturing of any product containing intentionally added PFAS has to report what chemical it contains, how much, what it is used in and how many units of the products are on the market.
"They moved from where they said you just had to report cookware, to where the entire economy of Maine needs to disclose if there is intentionally added PFAS," he said.
West wasn't sure if the Maine Department of Environmental Protection (MDEP) was consulted by the legislature when the bill was going through.
Originally, the reporting deadline was to begin Jan. 1, 2023, but the legislature since has extended that date to the beginning of 2025. Because of that extension, the rule making has been put on hold for awhile, so he said there may be more legislative fixes to the underlying bill as it moves forward.
But the big thing the ACC sees copycatted in other states is a provision where, if by 2030, the state determines that the use of intentionally added PFAS is avoidable, the product will be banned.
"The [MDEP] has started to signal-which is good-the kinds of functions that it will consider currently unavoidable," West said. "And I look at that list and I see a whole lot of really strong arguments for substances that involved fluoropolymers and fluoroelastomers. So I do see a little hope in this one."
