Renewable energy companies are confronted with new federal and state regulations targeting per- and polyfluoroalkyl substances (PFAS), known as ‘forever chemicals’. PFAS, which consist of over 12,000 compounds, are used in the renewable energy industry for their durability and flexibility. However, new rules necessitate heightened scrutiny of their use due to potential environmental liabilities and litigation risks.
PFAS are prevalent in renewable energy components such as hydrogen fuel cells, wind turbines, and coatings for electrical wires, among others. Companies in the sector must now navigate obligations under new federal regulations, including potential reporting requirements. For instance, the Environmental Protection Agency (EPA) has classified certain types of PFAS, like PFOA and PFOS, as “hazardous substances” under the Superfund law. This designation will mandate that renewable energy companies consider the historic impact of these substances in Phase I site assessments.
These regulations could affect renewable energy projects commonly developed on former agricultural land, which may have used biosolids containing PFAS. Such sites could now be recognized for brownfield incentives, given the potential hazardous substance contamination.
The EPA has also introduced a reporting requirement, due in May 2025, for any company that manufactured or imported certain PFAS or PFAS-containing products since 2011. This extensive rule, under the Toxic Substances Control Act, includes over 1,400 types of PFAS, extending to chemicals imported as part of manufactured articles like renewable energy equipment. Despite the lack of exemptions or minimum production thresholds, the mandate limits reporting to “information known or reasonably ascertainable.”
At the state level, Maine and Minnesota have passed legislation banning the sale and distribution of PFAS-containing products or components, with varying timelines for compliance. Maine plans to prohibit intentionally added PFAS in all products by 2032, while Minnesota aims to ban most PFAS-containing products by 2025. Exceptions exist for products where PFAS use is deemed “currently unavoidable,” providing a potential continuation for certain renewable energy applications.
Renewable energy companies need to audit their usage of PFAS-containing products and evaluate their regulatory obligations. Proper documentation of PFAS consideration and mitigation measures during real estate diligence, like in Phase I site assessments, will be crucial to safeguard against potential citizen suits and environmental liabilities. For detailed guidance on the new regulations, consult the instructional manual released by the EPA.
For more on these regulatory changes, visit the full article on Bloomberg Law.