In July 2021, the Maine Legislature passed LD 1503, An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution, requiring manufacturers of products with intentionally added PFAS to report these products to the Maine Department of Environmental Protection (Maine DEP) by Jan. 1, 2023. The law delegates rulemaking authority to the Maine DEP, and that process is still ongoing.
In October 2022, Maine DEP hosted a remote meeting to discuss the second concept draft of the Maine PFAS in Products Program rulemaking. St.Germain was on the call and is following the subject closely.
The Biggest Takeaway/To-Do for Manufacturers: File an Extension
The Department expects the rulemaking process to take several more months; so while they can’t change the reporting deadline (the date is written into the statute) while the details get hashed out, they are allowing companies who aren’t sure whether or not they will be subject to the reporting requirement to file for individual extensions. Hundreds have already done so.
The Statutory Deadlines
- January 1, 2023: Without an extension, any manufacturer who intentionally adds PFAS to its product(s) must notify the Maine DEP which PFAS they’re using, and how much of each one, in their product(s). They can still sell products with added PFAS (for now); they just have to disclose this information. The exception is carpets, rugs, and fabric treatments. The law prohibits the sale of any carpets, rugs, and fabric treatments with intentionally-added PFAS in Maine as of Jan. 1*.
*The second concept draft clarifies that the legislature intended the ban to apply only to rugs and carpeting used as indoor floor coverings for homes or businesses.
- January 1, 2030: As of this date, manufacturers will no longer be able to sell products containing intentionally added PFAS in Maine, unless the use of PFAS is specifically designated as a “currently unavoidable use*” by Maine DEP rule. The Maine DEP may accelerate the ban on the sale of products containing intentionally added PFAS, but only by major substantive rulemaking.
* Designating products or product categories as currently unavoidable uses is a separate major substantive rulemaking process which Maine DEP anticipates undertaking in the summer of 2023. The second concept draft includes definitions to clear up how the Department intends approach that definition.
While not exhaustive, the U.S. EPA has a current list of PFAS-defined chemicals that provides a good starting place.
Under the statute, “PFAS are broadly defined as substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom. The Department interprets fully fluorinated to mean a carbon atom on which all the hydrogen substituents have been replaced by fluorine. Any intentionally added chemical meeting this definition will trigger the notification requirement.”
Intentionally added PFAS, defined
The definition of “intentionally added PFAS” is a critical component of both the statute and the regulation. Per the latest draft,
“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. The definition also includes any degradation byproducts of PFAS serving a functional purpose or technical effect within the product or its components. Intentionally added PFAS does not include PFAS that is present in the final product as a contaminant.
The statute defines a manufacturer as “the person that manufactures a product or whose brand name is affixed to the product.” This includes imported products. Please note that “a person may meet the definition of a manufacturer at 38 M.R.S. 1614 (1)(E), even though they did not intentionally add PFAS to the components in their product that they sell in Maine.”
Rulemaking takeaways, as of Oct. 2022
- For lack of a final rule providing specific reporting guidance at this time, the Maine DEP is recommending that manufacturers use Excel spreadsheets or Word documents to submit the required information specified in both the statute and the concept draft rule.
- The Maine DEP is not recommending the use of Safety Data Sheets or technical specification sheets to determine if PFAS are present in a chemical or component that is used in the manufacturing process, as manufacturers of these products are not required to list any components/constituents comprising 1 percent (10,000 mg/L) or greater, unless it is a known carcinogen of 0.1 percent concentration or greater.
- The second concept draft proposes using Global Product Classification (GPC) brick codes for reporting, rather than the UPC codes proposed in the first draft.
- The second concept draft proposes fees of $250 for the first three notifications by a company and $50 for each notification thereafter.
The Maine DEP is reviewing comments and input from the stakeholders’ meeting and will submit a revised draft to the Board of Environmental Protection following the Attorney General’s review. The draft rule will then be published for public comment and a public hearing may be scheduled.
The DEP expects that it will need two months to consider and submit the final draft to the BEP, estimated for April 2023.
What these PFAS regulations mean for you
Even though the rules won’t be finalized by Jan. 1, 2023, the reporting deadline is written into the statute and must remain in place. Based on the information currently available, companies that aren’t sure if they are using intentionally added PFAS can request a 6-month reporting extension. Upon Maine DEP review, companies will either receive an extension or it will be rejected if it’s clear that they intentionally add PFAS to their products.
The bottom line: if you think this law may apply to your business, file for an extension as soon as possible. This deadline is quickly approaching, and there are still a lot of unanswered questions regarding analytical methods, the extent of testing requirements, etc.
In the meantime, our team will be paying close attention as this all unfolds. Maine DEP has also been posting regular updates, including FAQs, to its PFAS in Products landing page.
Want to learn more?
Our Update on PFAS in Maine is a solid foundation for understanding this complex topic.
If you have questions regarding the latest Maine PFAS regulations and how they might impact your specific business, please contact Brian Bachmann, Senior Project Manager, at (207) 591-7000 or firstname.lastname@example.org.