Maine Issues Proposed Rule Concerning PFAS-Containing Products

On February 14, the Maine Department of Environmental Protection (the Department or DEP) initiated the long-awaited rulemaking process to implement notification requirements and sales prohibitions for products and product components containing intentionally added PFAS.

Background

As we previously discussed, in July 2021, the Maine legislature enacted the Act to Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution, 38 M.R.S. § 1614. The primary components of the law are a ban on the sale and distribution in Maine of any product that contains intentionally added PFAS starting January 1, 2030 and a requirement that manufacturers of such products submit a written notification to Maine DEP informing the Department of products they sell in the state that contain intentionally added PFAS. This later portion took effect January 1, 2023, at the same time a prohibition on the sale of PFAS-containing carpet, rug, or fabric treatment went into effect.

The Rule Development

Although the reporting requirement technically became effective on January 1, Maine DEP extended the reporting deadline for most companies that requested an extension until six months after the effective date of the Department’s finally adopted rule, implicitly acknowledging that the rule was still being developed and that entities subject to the rule will require time to come into compliance.

The Department issued two pre-rulemaking “concept drafts” last year, one in June and one in late October 2022. Based on comments received, the Department revised the draft and submitted a proposed rule to the Maine Board of Environmental Protection. On January 19, 2023, the Board voted to issue the proposed rule. It was noticed on February 14, 2023.

Significant Provisions

The proposed rule would require a manufacturer of a product for sale in Maine that contains intentionally added PFAS to submit a notification to the Department.

• A “Manufacturer” is the person that manufactures a product or whose brand name is legally affixed to the product.
• A “product” is an item manufactured, assembled, packaged, or otherwise prepared for sale to consumers, including its product components, that is sold or distributed for personal, residential, commercial, or industrial use, including for use in making other products. The product’s packaging is not subject to notification.
• “PFAS” is defined as 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. PFAS present in a product as a contaminant is not considered to be intentionally added.

The reporting requirement does not apply to used products.

If the Department has previously received notifications for specific product components which are used in more complex products containing the reported components, the manufacturer of the more complex product must either report the PFAS in the product including its components or refer to the notifications for product components and any PFAS in the remainder of the product.

The Department can waive all or part of the notification requirement if the Department determines that substantially equivalent information is publicly available.

A manufacturer of products or product components that submits a notification must pay a fee: an initial $250 that covers up to the first three notifications and $50 for each additional notification thereafter.

If a manufacturer fails to submit the notification, the subject product may not be sold, offered for sale, or distributed in the state of Maine.

Next Steps

The Department will hold a public hearing on the proposed rule on April 20, 2023, at 9:00 AM in Augusta, Maine. Given the attention on this proposal throughout its development, there are likely to be many written comments submitted by the public, as well as a large number of participants in the public meeting. It is not clear at this time whether an on-line participation option will be offered.

Comments must be filed by May 19, 2023, at 5:00 PM.

* Margaret Barry contributed to this blog. Ms. Barry is employed at Arnold & Porter as an Environmental Law Writer. She is not admitted to the practice of law.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This blog post 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.