By Lynn L. Bergeson and Carla N. Hutton
 
On June 6, 2023, the Maine Senate passed LD 217, “An Act to Support Manufacturers Whose Products Contain Perfluoroalkyl and Polyfluoroalkyl Substances” (Act). Passed by the House on June 1, 2023, the bill would postpone the January 1, 2023, reporting requirement for products and product components containing intentionally added per- and polyfluoroalkyl substances (PFAS). As reported in our February 17, 2023, memorandum, the Maine Department of Environmental Protection (MDEP) issued a proposed rule intended to provide additional guidance on the notification requirements and sales prohibitions under the Act. Comments were due May 19, 2023.
 
The bill would extend the January 1, 2023, deadline for reporting the use of PFAS in products for sale to January 1, 2025, and would authorize reporting the amount of total organic fluorine if the amount of each PFAS compound is not known. The bill would allow the amount of PFAS to be reported based on information provided by a supplier rather than testing. It clarifies the packaging exemption under the law regulating PFAS in products, exempts from the reporting requirements manufacturers that employ 25 or fewer people, clarifies that the requirements and prohibitions of PFAS in products do not apply to used products or used product components, and makes other technical clarifications to PFAS reporting requirements. The changes made by the bill to the law regulating PFAS in products would be made retroactive to January 1, 2023.
 
Governor Janet Mills (D) has ten days (not counting Sundays) to sign or veto the bill. If Mills does not sign the bill and the legislature is still in session, after ten days, the bill will become law as if she signed it. Mills is reportedly expected to sign the bill.

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By Lynn L. Bergeson and Carla N. Hutton
 
Maine enacted An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution in July 2021. Under the bill, manufacturers of products with intentionally added per- and polyfluoroalkyl substances (PFAS) were required to report the presence of the intentionally added PFAS in those products to the Maine Department of Environmental Protection (MDEP) beginning January 1, 2023. As reported in our February 17, 2023, memorandum, on February 14, 2023, MDEP announced a much anticipated proposed rule intended to provide additional guidance on the notification requirements and sales prohibitions. The Maine Board of Environmental Protection (MBEP) held a public hearing on April 20, 2023, on the proposed rule. Comments on the proposed rule are due to MDEP on May 19, 2023, by 5:00 p.m. (EDT). On April 26, 2023, the Maine Joint Standing Committee on Environment and Natural Resources will hold a hearing on the following bills:

• An Act to Support Manufacturers Whose Products Contain PFAS (LD 217): This bill is a concept draft that would require the development and implementation of a program to support manufacturers whose products contain PFAS;
   
• An Act to Establish Statewide Standards for PFAS (LD 304): This bill is a concept draft that would establish statewide standards for testing and acceptable levels of PFAS;
   
• An Act to Clarify the Laws to Combat PFAS Contamination (LD 1214): The bill would amend “An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution.” Amendments include excluding degradation by products of PFAS from the definition of intentionally added PFAS; redefining PFAS as “a group of synthetic perfluoroalkyl and polyfluoroalkyl substances that contain at least 2 sequential fully fluorinated carbon atoms, excluding polymers, gases and volatile liquids”; and extending the reporting deadline from January 1, 2023, to January 1, 2024;
   
• An Act to Exempt Some Businesses from Certain Laws Relating to PFAS in Accordance with the Size of the Business (LD 1273): The bill would exempt businesses with fewer than ten employees or that have less than $1,000,000 in annual revenue from the requirement to test products for PFAS; and
   
• An Act to Amend the Laws Relating to the Prevention of PFAS Pollution and to Provide Additional Funding (LD 1537): The bill would amend “An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution.” Amendments include extending the reporting deadline from January 1, 2023, to October 1, 2023; clarifying the packaging exemption; and excluding manufacturers with less than $20,000,000 in national annual sales of products from the reporting requirements.

Several of the bills are intended to address issues in the original legislation that MDEP is unable to address through regulation.

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By Lynn L. Bergeson and Carla N. Hutton

Maine enacted “An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution” in July 2021. Under the bill, manufacturers of products with intentionally added per- and polyfluoroalkyl substances (PFAS) must report the presence of the intentionally added PFAS in those products to the Maine Department of Environmental Protection (MDEP) beginning January 1, 2023. The law also prohibits the sale of carpets or rugs, as well as the sale of fabric treatments, that contain intentionally added PFAS beginning on January 1, 2023. Beginning January 1, 2030, any product containing intentionally added PFAS may not be sold in Maine unless the use of PFAS in the product is specifically designated as a currently unavoidable use by MDEP.

According to the MDEP website, MDEP is in the process of developing a rule to clarify the January 1, 2023, reporting requirements. MDEP states that during the rule development process, there will be an opportunity for stakeholder input on the implementation of the program. Stakeholders can subscribe to receive notification of MDEP rulemaking and opportunity to comment notices on its website.

Pending clarification of the reporting requirements, reporting entities may need to request an extension of time to notify MDEP of any products for sale in the state of Maine that contain intentionally added PFAS. At this time, terms in the statutory language are not defined to allow companies to report information with sufficient clarity to comply confidently with the law. Manufacturers will need to obtain information from many industry sectors and upstream suppliers to determine if PFAS was intentionally added to the product or is a component of the product. Suppliers in many industry sectors are numerous, and because of current and ongoing supply chain issues, manufacturers are challenged now more than ever. The frequently asked questions (FAQ) on MDEP’s website list information that will be required, “at a minimum,” but the website states that “[t]hese requirements will be further clarified as part of the rulemaking.”

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