Maine DEP Issues Second Concept Draft of Proposed PFAS Regulation; Schedules Stakeholder Meeting Oct. 27

Maine’s Department of Environmental Protection (Maine DEP) issued a revised “Second Concept Draft” of proposed regulations for intentionally added PFAS in products in Maine, and has announced that it will hold another virtual meeting to discuss the revisions.  The second concept draft rule revises the original concept draft, based on comments that DEP received from stakeholders, and introduces a number of definitions, fee terms, and other provisions. DEP seeks comments during the virtual meeting on a number of edits, including the use of Global Product Classification brick codes for reporting rather than the originally proposed UPC codes; a flat fee for a company’s first three notifications, and a reduced fee for subsequent notifications; and certain definitions.

The second concept draft modifies or introduces a number of definitions, including for “currently unavoidable use.” DEP expects to undertake a major – and separate – substantive rulemaking in the summer of 2023 to address the designation of products or product categories as currently unavoidable uses.  It explained that it has added a definition of this term in the second concept draft to provide “clarity” to stakeholders regarding how it would evaluate this designation. The draft introduces a sweeping definition for “Essential for Health, Safety, or the Functioning of Society” and also redefines “carpet” or “rug” as products that, if containing PFAS, would be prohibited from sale starting in 2023.

The virtual meeting is scheduled for October 27, 2022, at 11 a.m. ET.

Maine DEP Requests Comments on Concept Draft of Proposed PFAS Regulations

The Maine DEP has issued a “Concept Draft” of proposed regulations that details some of the notification requirements and sales prohibitions for products containing Intentionally Added PFAS under Maine’s Act to Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution, 38 M.R.S. §1614. In a June 30 meeting among the agency and more than 200 stakeholders, Maine DEP staff introduced the Concept Draft and acknowledged the complexity of implementing this first-in-the-nation requirement, with applicability to a currently unknown range of consumer, commercial and industrial products. DEP requested comments on a range of topics that provide an opportunity for stakeholders to explain the difficulties of reporting due to the broad scope of products covered by the Maine law. The agency also seeks feedback on how fees should be calculated, with the concept draft proposing a per-SKU reporting fee. DEP is accepting comments on the Concept Draft until July 18, 2022, with another opportunity for comment when a draft regulation is formally proposed later in the year.

Key Takeaways

• What is Happening? On July 15, 2021, Maine adopted a law that will ban the use of perfluoroalkyl and polyfluoroalkyl substances (PFAS) in products. While the law takes a phased approach over the next few years, it will essentially ban the sale of new products that contain intentionally added PFAS starting January 1, 2030. Maine DEP will be empowered to enact exemptions by designating certain uses as currently unavoidable. The law also requires manufacturers of products containing intentionally added PFAS to notify the Maine DEP of such products and uses beginning January 1, 2023.

• Who is Impacted? Manufacturers, distributors, and retailers who sell new products containing intentionally added PFAS.

• What Should I Do? Product manufacturers should work with supply chain partners to confirm whether their products contain intentionally added PFAS. If so, product manufacturers should begin gathering information to provide the required notice to the Maine DEP by January 1, 2023. 

What are PFAS?

PFAS are human-made chemicals that, according to U.S. EPA, are used across a variety of industries for manufacturing and in products including stain- and water-repellent fabrics, nonstick products, polishes, waxes, paints, cleaning products, fire-fighting foams, and other materials. The Maine law defines PFAS as “substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.”

Notification Requirements

Under the new law, manufacturers of all new products containing intentionally added PFAS must notify the Maine DEP of their use of PFAS for each of their PFAS-containing products starting January 1, 2023. The law defines “intentionally added PFAS” as “PFAS added to a product or one of its product components to provide a specific characteristic, appearance or quality or to perform a specific function…[and also] includes any degradation byproducts of PFAS.” The notification must include: a description of the product, the purpose of using PFAS in the product or a product component, the precise amount of each type of PFAS in the product, the contact information of the manufacturer, and any additional information required by the Maine DEP. The Maine DEP may require a fee to be paid by the manufacturer upon submission of the required notification information.

With the Maine DEP’s approval, a manufacturer may supply the information required for a product category or type rather than for each individual product. The Maine DEP may also waive the notification requirement where it determines substantially equivalent information is already publicly available and it may also extend the notification deadline if more time is needed for a manufacturer to comply. Notification is not required where regulation is preempted by federal law and for products governed by Maine’s toxic chemicals in packaging and food packaging laws (Title 32, Chapters 26-a, 26-b).

If the Maine DEP has reason to believe a product contains intentionally added PFAS and proper notification was not provided, the Maine DEP may require the manufacturer to, within 30 days, either (a) provide the department with an attestation that the product does not intentionally contain PFAS or (b) notify sellers of the product in Maine that the sale of the product is prohibited and provide information of those notified to the department.

Prohibition on Use in Products

The Maine law takes a phased approach by initially banning new carpets, rugs, and fabric treatments that contain intentionally added PFAS as of January 1, 2023. Starting January 1, 2030, the sale or distribution of any new product containing intentionally added PFAS will be prohibited. Through the rulemaking process, the Maine DEP may also, even before 2030, prohibit product categories or uses if they contain intentionally added PFAS.

The Maine law does not incorporate exemptions common in laws restricting the use of chemicals in products. For instance, the law does not contain an exemption for spare parts or certain specialized equipment, nor does it incorporate a de minimis exemption. The Maine DEP may, however, designate certain uses of PFAS through notice and comment rulemaking as “currently unavoidable,” which would exempt those uses from the restriction that goes into effect in 2030.

Beveridge & Diamond’s Chemicals Regulation practice group and Chemicals industry group provide strategic, business-focused advice to the global chemicals industry. We work with large and small chemical and products companies whose products and activities are subject to EPA’s broad chemical regulatory authority under TSCA and state chemical restrictions. Our Consumer Products and Product Stewardship, Global Supply Chains practices work with U.S. and multinational companies that make, distribute, transport, or sell consumer products in a hyper-competitive and evolving consumer goods market. We help identify, understand, and comply with complex regulatory requirements throughout the product lifecycle. For more information, please contact the authors.