On January 27, 2022, a unique PFAS-related bill was introduced in the Massachusetts Senate entitled “An Act establishing a moratorium on the procurement of structures or activities generating PFAS emissions” (S.2655). The bill seeks to require the Massachusetts Department of Environmental Protection (DEP) to create a moratorium on granting proposals of businesses that are found to emit PFAS into the air. While other bills in the country have been introduced seeking moratoriums on things specific to, for example, incineration of PFAS-containing waste, the Massachusetts bill seeks to regulate business practices well beyond what other states have thus far proposed. The PFAS moratorium bill, if passed, would have impacts on businesses seeking to come to Massachusetts, as well as existing businesses in Massachusetts looking to expand their company.

Proposed PFAS Moratorium In Massachusetts

S.2655 was introduced in the Massachusetts Senate in late January 2022 and reads in relevant part: “…[the DEP] shall establish and enforce as necessary a moratorium prohibiting the procurement of PFAS-emitting structures or activities and shall not grant approval to any person required to file an environmental notification form proposing a new use or structure or modification of an existing use or structure where said proposal would generate emissions containing perfluoroalkyl and polyfluoroalkyl substances.” PFAS are defined as a chemical class with at least one fully fluorinated carbon atom, which would encompass the entire class of over 9,000 PFAS. The bill calls for a moratorium to remain in place until the EPA and the DEP both establish emission standards for PFAS.

On January 18, 2022, the Joint Committee on State Administration & Regulatory Oversight voted to advance the  legislation, so it will now be considered by the Senate Committee on Ways & Means.

Business Impacts of PFAS Moratorium

The focus of S.2655 is on curbing air emissions of PFAS in Massachusetts. Unlike other states that have targeted specific industries such as incinerators, however, the Massachusetts proposed bill would create a moratorium on companies of any kind that emit PFAS into the air. With over 9,000 PFAS to consider in due diligence, companies will have to ensure before submitting proposals to the state that they are in no way emitting PFAS. For some industries, this could be a difficult task, especially given that many companies source products from overseas, where concrete disclosures of material chemical composition are sometimes hard to come by. It remains to be seen, as well, how the DEP would require companies to verify that their proposed projects would in no way emit PFAS into the air, which adds a bit of uncertainty to any company’s analysis of this issue.

The bill could also have the unintended consequence of slowing out-of-state companies looking to Massachusetts to expand their company. Faced with the option of proposing an expansion project in Massachusetts with the added PFAS requirements versus the option of moving to a neighboring state with no such regulatory hurdle, some companies may be persuaded to expand their business elsewhere.