On Feb. 14, 2023, the Maine Department of Environmental Protection (MDEP) proposed a new rule clarifying the notification and reporting requirements enacted in 38 M.R.S. §1614 — Maine’s “An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution” (the Act).

Under the Act, all product manufacturers — broadly defined as those “that manufacture[] a product or whose brand name is affixed to the product” or, where those entities have no presence in the United States, “the importer or first domestic distributor of the product” — were required by Jan. 1, 2023, to report any products sold in Maine that contain “intentionally added” per- and polyfluoroalkyl substances (collectively, “PFAS”). 38 M.R.S. §§ 1614(1)(E), (2). The Act did not define many terms, specify what was to be included in the reports, or specify how to provide the required notifications. The Act also defined PFAS as “substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom,” which would have required manufacturers to notify MDEP of intentionally added compounds not presently listed as PFAS nor classified as such by the United States Environmental Protection Agency.

Maine’s proposed rule clarifies some of these ambiguities:

• Definitions: The proposed rule clarifies terms in the Act, including:
  • That “PFAS” is still defined as any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom. The new rule clarifies, however, that since 38 M.R.S. § 1614 requires notification of intentionally added PFAS by CAS number, chemicals that do not have CAS numbers assigned are not subject to the Act.
  • “Manufacturer” means the person that manufactures a product or whose brand name is legally affixed to the product. The new rule clarifies that for an imported product where the manufacturer or person whose brand name is 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 the product in Maine. Online retail platforms may allow for the purchase of products directly from a producer, and when no other person meets the definition of manufacturer, and the product is sold, offered for sale, or distributed in Maine, MDEP will consider the importer to be the manufacturer.
  • “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. Intentionally added PFAS 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.
• Submission procedures: The proposed rule provides more information on how reports are to be submitted. MDEP is developing an electronic submission system. Until then, submissions may be sent by email to PFASproducts@maine.gov.
• Submission contents: The proposed rule clarifies what information the notifications must contain, including a brief description of the product and its intended use, the purpose for which PFAS are used in the product, the identification — by CAS RN — and concentration of each PFAS substance, and contact information for the reporting manufacturer.
• Fees: The proposed rule establishes a submission fee of $250 for the first three notifications and $50 for each additional notification.
• Confidentiality protections: The proposed rule notes that manufacturers may designate information as confidential business information at the time of notification, which will be evaluated under Maine’s Freedom of Access Act Title 1, Chapter 13, subchapter 1, and related policies and procedures.
• Exempts product packaging, including food packaging: The proposed rule clarifies products subject to Title 32, § 26-A, Reduction of Toxics in Packaging, and Title 32, § 26-B, Toxic Chemicals in Food Packaging, are exempt from the Act. The exemption applies to all packing, packing components, and food packaging as defined in 32 M.R.S. § 1732, regardless of whether the MDEP has specifically regulated such items, so long as the items are actually used as packaging, packing components, or food packing, intended for marketing, handling, or protection of products.

MDEP will hold a public hearing on the proposed rule on April 20, 2023. Comments are due May 19, 2023, by 5 p.m.