Maine Moving Forward Fast With Requirements to Prohibit PFAS in Products

Maine has released a concept draft foreshadowing comprehensive regulations that will soon be promulgated to implement reporting requirements and then a phased-in ban on products containing PFAS that are sold in Maine.

In July 2021, the Maine legislature enacted far-reaching restrictions on products containing intentionally-added PFAS. The most significant part of the new law is the sweeping ban to take effect in 2030. Beginning January 1, 2030, one may not sell or distribute in Maine any product that contains intentionally added PFAS, unless DEP has determined by rule that the use of PFAS is currently unavoidable.

“Currently unavoidable use” is defined as that which DEP has determined by rule to be essential for health, safety or the functioning of society and for which alternatives are not reasonably available. DEP may specify products or product categories for which it has determined the use of PFAS is a currently unavoidable use, and exempt them from the restriction via a rule. Although the state has provided no insight as to how it might implement this provision of the law, presumably, such products representing “unavoidable uses” would be permitted to remain on the market.

Maine’s law defines PFAS as “all substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” “Intentionally added PFAS” means PFAS added to a product or one of its product components in order to provide a specific characteristic, appearance, or quality or to perform a specific function. It includes degradation byproducts of PFAS.

In the first phase of the state’s measures beginning January 1, 2023, a person may not sell or distribute for sale in Maine a carpet, rug, or fabric treatment that contains intentionally added PFAS. Additionally, DEP is authorized to identify other products, either by category or use, and impose restrictions on the sale of those items in the State if they contain intentionally added PFAS.

Also effective on January 1, 2023, is Maine’s new PFAS Consumer Products Registration Program. This Program requires that manufacturers of a product sold in Maine containing intentionally added PFAS submit a written notification to the Maine Department of Environmental Protection (DEP) that includes: a brief description of the product; the purpose for which PFAS are used in the product, including use in any product components; the amount of each of the PFAS, identified by its chemical abstracts service registry number, in the product; the name and address of the manufacturer, and the name, address and phone number of a contact person for the manufacturer. Maine DEP may waive all or part of the notification requirements if DEP determines that substantially equivalent information is publicly available.

On June 30, 2022, the Maine DEP held a stakeholder meeting concerning the new law’s PFAS Consumer Products Registration Program. The purpose of the meeting was to provide an overview of how the DEP intends to proceed with rule development to implement the program. In connection with the meeting, DEP released a Concept Draft of the proposed rule, on which comments are due almost immediately, not later than July 18. Maine is seeking initial feedback on its proposal, including on the following issues:

• What should be the basis for an extension of the notification deadline?
• What would be a reasonable range for a PFAS reporting range and should DEP approve of using one?
• What would be the qualifications for a product type to be reported as a group or category?
• What would stakeholders deem “substantially equivalent information” with regard to the exemption noted in the Rulemaking?
• What are the anticipated number of products that DEP can expect to be reported initially?

Notwithstanding that Maine will begin receiving comments on the Concept Draft July 18, 2022, it intends to review and take the comments into consideration when it commences the formal rulemaking process later this summer or, at the latest, early fall. Once formal rulemaking is underway, there will be additional opportunities for stakeholders to comment.

Rulemakings to implement the other portions of the law will commence at a later date.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.