On Feb. 14, 2023, the Maine Department of Environmental Protection (MDEP) announced a much-anticipated proposed rule intended to clarify the notification requirements and sales prohibitions for products and product components containing intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS). This reporting requirement has generated attention given its broad scope and “first out of the gate” nature. Here is a summary of the guidance.
Background
Maine enacted “An Act to Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution” in July 2021. Under the law, manufacturers of products with intentionally added PFAS must report those products to MDEP beginning Jan. 1, 2023. The law prohibits the sale of carpets, rugs or fabric treatments that contain intentionally added PFAS beginning Jan. 1, 2023. Starting Jan. 1, 2030, any product containing intentionally added PFAS may not be sold in Maine unless the use of PFAS in the product is designated unavoidable by MDEP.
Reporting entities had to request an extension to notify MDEP of any products for sale in Maine that contain intentionally added PFAS. Manufacturers had to obtain information from many industry sectors and upstream suppliers to determine if PFAS was intentionally added to the product or is a product component. The state maintains a publicly accessible database listing entities that sought and obtained an extension of the reporting obligation.
Proposed Rule
The proposed rule would apply to all new products and product components sold, offered for sale or distributed for sale in Maine that contain intentionally added PFAS. The proposed rule defines several terms.
Intentionally added PFAS means 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. This also includes any degradation byproducts of PFAS serving a functional purpose or technical effect within the product or its components. Products containing intentionally added PFAS include products that consist solely of PFAS. It does not include PFAS present in the final product as a contaminant.
Many questions remain unanswered.
Manufacturer refers to the person that manufactures a product or whose brand name is affixed to the product. In the case of a product imported into the United States where the manufacture, assembly or brand name affixed to the product does not have a presence in the United States, “manufacturer” includes either the importer or the first domestic distributor of the product, whichever is first to sell, offer for sale or distribute for sale the product in the state of Maine.
Perfluoroalkyl and polyfluoroalkyl substances (PFAS) refers to substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
Product means 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. “Product” includes packages, packaging components and food packaging, as defined in 32 M.R.S. [Section] 1732, when sold individually or in bulk and not used in marketing, handling or protecting a product.
Product component defines an identifiable part of a product, regardless of whether the manufacturer of the product is the manufacturer of the product component.
The proposed rule includes certain exemptions, specifically, a product for which federal law or regulation controls the presence of PFAS in the product in a manner that preempts state authority. MDEP notes that federal preemption involves determining the intent of federal laws to limit or eliminate overlapping programs at the state level. The intent can be explicit or implicit where the structure and scope of the federal law reflects the intent to preempt.
Discussion
The proposal offers much-needed guidance, but more is needed. The challenge is knowing when a product may contain an intentionally added PFAS, and then knowing what to do for reporting purposes. Stakeholders should read the proposal, as many questions remain unanswered. The MDEP program could serve as a template for other states. MDEP will hold a public hearing on April 20. Comments are due May 19.
