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Maine Proposes Rule Regarding Products Containing Intentionally Added PFAS
Tuesday, December 31, 2024

On December 20, 2024, the Maine Department of Environmental Protection (MDEP) published a proposed rule regarding products containing intentionally added per- and polyfluoroalkyl substances (PFAS). The rule would establish criteria for currently unavoidable uses (CUU) of intentionally added PFAS in products and implement sales prohibitions and notification requirements for products containing intentionally added PFAS but determined to be a CUU. MDEP will hold a public hearing on January 16, 2025, at 9:00 a.m. (EST). Comments are due January 28, 2025, at 5:00 p.m. (EST). The proposed rule and a fact sheet are available on MDEP’s website.

Background

As reported in our May 24, 2024, blog item, on April 16, 2024, Governor Janet Mills (D) signed LD 1537, amending An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution. The amendments eliminate the general notification requirement that was scheduled to take effect January 1, 2025; create new sales prohibitions for products with intentionally added PFAS with varying effective dates; exempt certain product categories from the prohibitions; and establish a new reporting program for those product categories that receive a CUU determination from MDEP.

August 2024 Concept Draft Language for PFAS in Products Rule

MDEP announced on August 5, 2024, that its PFAS in Products Program had developed new concept draft language to implement the recently amended Title 38, Section 1614, the section addressing PFAS in products. MDEP made the concept draft language available for an informal outreach process until August 30, 2024. The concept draft language details the sales prohibitions for new and unused products and product components containing intentionally added PFAS, and the notification requirements for products containing intentionally added PFAS determined to be a CUU. A detailed summary of the concept draft language is available in our August 7, 2024, memorandum.

December 2024 Proposed Rule

According to MDEP’s fact sheet, numerous stakeholders commented on the August 2024 concept draft language. In addition, MDEP staff heard from multiple members of the regulated community or their representatives. The fact sheet notes that MDEP “held discussions with the Minnesota Pollution Control Agency which is implementing legislation that is similar to Maine’s statute.” In addition, MDEP conducted a review of PFAS regulatory developments at the state, federal, and international levels.

The proposed rule is very similar to the concept draft language. Substantive differences between the concept draft language and the proposed rule include:

  • The concept draft language states that “[i]f a product is imported directly into the State of Maine from outside the United States to be sold, offered for sale, or distributed for sale outside of the sales and distribution channels controlled by the manufacturer, and the manufacturer has not submitted notification of the product to the Department, it is the responsibility of the person importing the product into the State of Maine to submit notification of the product to the Department.” The proposed rule does not include this language, but it may be that this language is a remnant from MDEP’s February 2023 proposed rule and referred to the general reporting requirement that was removed by the legislature in 2024.
  • The concept draft language states that “[i]f similar [exempt] products are available for sale, offered for sale, or distributed for sale in the state of Maine either in compliance with an intentionally added PFAS sales prohibition or otherwise documented to be PFAS free, a manufacturer must, at the Department’s request, provide sufficient justification that the product containing intentionally added PFAS is necessary to meet said requirements.”
  • The fee for notifications for products with CUU determinations has been reduced from $5,000 to $1,500.
  • Initial CUU proposals for products submit to sales prohibitions taking effect in 2026 would be due June 1, 2025. This is different than Minnesota, where products containing intentionally added PFAS that are prohibited as of January 1, 2025, are not eligible for a CUU determination.

Commentary

As noted in our earlier memorandum on the concept draft language, the process outlined for CUU determinations is interesting. As most recently amended in April, the law now requires notifications only for products covered by a CUU determination. Notifications now would be subject to a $1,500 fee. Proposals for initial CUU determinations cannot be submitted before 36 months prior to a sales prohibition, and no later than 18 months prior to the prohibition. Importantly, “proprietary information” can remain protected unless Maine determines “that there is insufficient publicly available information to justify a rulemaking.” As noted, Maine is plainly discouraging the assertion of confidential business information in CUU applications.

Interested parties are urged to review the list of exemptions for items listed, the scope of each exemption, and what is not listed. Although the exemptions are in An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution, as amended by LD 1537, it is possible that the legislature will amend the statute further in 2025.

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