On February 14, 2023, the Maine Department of Environmental Protection (MDEP) issued a proposed draft rule that provides guidance on reporting requirements and sales prohibitions for products and product components containing intentionally added Per- and Polyfluoroalkyl substances (PFAS). This proposed rule comes on the heels of two prior MDEP concept drafts and public hearings attended by hundreds of interested parties that generated a significant number of substantive comments.
In July 2021, the Maine Legislature enacted An Act to Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution. The law sets forth three main objectives: (1) banning the sale of any product containing intentionally added PFAS by January 1, 2030; (2) banning the sale of carpets, rugs, and fabric treatments with intentionally added PFAS beginning on January 1, 2023; and (3) creating reporting requirements for manufacturers of products with intentionally added PFAS, also beginning on January 1, 2023. In the absence of implementing regulations as of the January 1, 2023 effective date of the law, MDEP granted compliance extensions to hundreds of manufacturers, following the Maine State Chamber of Commerce actively encouraging Maine businesses to seek extensions.
MDEP's latest draft rule clarifies a number of issues, including providing guidance on which PFAS chemicals must be reported, conditions for seeking waivers or exemptions from the reporting requirements, submitting claims for confidential business information, and certain fee requirements.
With regards to reporting, the draft rule specifies that the notification must include:
- a) A brief description of the product;
- b) The purpose for which PFAS are used in the product, including any product component;
- c) The amount of each PFAS as a concentration, identified by name and its chemical abstract service (CAS) registry number, of each PFAS in the product or any product component reported as an exact quantity determined using commercially available analytical methods, or as falling within a range approved by MDEP; and
- d) The name and address of the reporting manufacturer and information identifying a responsible officer for the manufacturer.
MDEP notes that because the statute requires notification of intentionally added PFAS by CAS number, chemicals which do not have a CAS number assigned are not subject to the reporting requirements or use prohibitions. The latest draft also removes a prior proposed requirement that manufacturers report estimated sales volume for the product. In defining a manufacturer, the proposal clarifies that, in the event a product contains more than one manufacturer, MDEP "will consider the party who controls the formulation of the product and its PFAS content to be the manufacturer."
The proposal further provides language on waiver requirements and preemption. MDEP may waive all or part of the notification requirement if MDEP determines that "substantially equivalent information" is publicly available. "Substantially equivalent information" is defined in part as "an existing notification by a person who manufactures a product or product component when the same product or product component is offered for sale under multiple brands."
A product for which federal law or regulation controls the presence of PFAS in the product is exempt from the proposed requirements. Federal preemption is described as "a determination that the intent of federal laws is to limit or eliminate overlapping programs at the state level." MDEP "will treat as exempt products where an applicable federal law is written with language that explicitly preempts parts of this program . . . [or] any products where an applicable opinion from a court having jurisdiction in Maine finds that preemption of parts of this program is implied." There are also exemptions for products subject to Maine Revised Statutes Title 32, Sections 26-A (Reduction of Toxics in Packaging) and 26-B (Toxic Chemicals in Food Packaging). This state exemption specifically applies to items being used as packaging, packing components, or food packing and intended for marketing, handling or protection of products.
MDEP also revised its rules for reporting confidential business information, with the latest draft stating that claims of confidential business information may be made at the time of notification. MDEP will handle these claims in accordance with Maine's Freedom of Access Act, Maine Revised Statutes and related policies and procedures. The proposal notes in particular that information courts would find to be privileged is excluded from public disclosure.
Finally, the proposed rule clarifies the requirements on product components, noting that "[a] separate notification and fee are only required for product components when they are offered or distributed in Maine without being incorporated into a more complex product."
The draft rule fails, however, to clarify what if any obligation is imposed on a manufacturer that unknowingly sells or distributes for sale a product that contains "intentionally added PFAS." For example, a manufacturer may use an ingredient or component that itself contains "intentionally added PFAS" but the manufacturer may lack "knowledge" of the presence of the PFAS in the ingredient or component. Moreover, because even the best laboratories can detect only a few of the more than 9,000 different PFAS, it is often impossible for a manufacturer to know whether a product sold or distributed in Maine contains "intentionally added PFAS". The regulations are silent on what, if any, compliance obligations may be triggered by what is a fairly common occurrence.
Manufacturers of products sold in Maine that may contain PFAS would be well served to carefully evaluate this proposed rule to determine how best to ensure compliance with the January 1, 2023 reporting obligations and subsequent sale prohibitions. Affected entities may elect to submit comments on the proposed rule on an individual basis or through a trade association. The public comment period closes on May 19, 2023.
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