Maine revises draft regulations for PFAS reporting law; triggers reporting for food packaging

Update January 4, 2023: The Maine DEP has updated its website to indicate food packaging containing intentionally added PFAS need not be reported under 38 MRS § 1614. Please see this article for more information.

Maine’s PFAS Reporting Requirement and Ban

Passed in July 2021, the Act requires manufacturers of products containing intentionally added PFAS to notify DEP about the presence of PFAS beginning January 1, 2023.¹ The notification must include the following items:

• A description of the product²;
• The function of PFAS in the product or a component of the product;
• The amount of each of the PFAS, identified by its chemical abstracts service registry number, in the product, reported as an exact quantity determined using commercially available analytical methods³ or as falling within a range approved for reporting purposes by DEP;
• The manufacturer’s contact information; and
• Any other information DEP requires by regulation.4

Second, the Act phases in total bans on the use of PFAS in products, starting with a ban on intentionally added PFAS in carpets, rugs, and fabric treatments on January 1, 2023. Then, beginning January 1, 2030, the Act bans the use of intentionally added PFAS in any product. However, the Act gives DEP the authority to conduct rulemaking and prohibit the intentional use of PFAS in other product categories before the 2030 ban is effective. The state may also exempt certain uses of PFAS from the 2030 ban if it conducts a rulemaking and deems the use “unavoidable.”

Violations of this law are subject to the enforcement actions listed in 38 MRS § 347-A, which include resolving violations through a consent agreement; referring to the state attorney general for civil or criminal prosecution; scheduling and holding an enforcement hearing on the alleged violation; or commencing a civil action following issuance of a notice of violation. Civil penalties may include a fine of up to $10,000 per day per violation, or, for criminal penalties, a fine of up to $25,000 per day per violation. 38 MRS § 349.

Exemptions and Applicability to Food Packaging

The Act contains two exemptions from both the reporting requirement and the total ban, which are found in 38 MRS § 1614(4):

• “Product[s] for which federal law governs the presence of PFAS in the product in a manner that preempts state authority.”

The state explained during its October 27 stakeholder engagement meeting and in the Frequently Asked Questions on its website that it is not aware of any federal law or regulation that would pre-empt any product from the state’s PFAS reporting requirements.⁵

• “Product[s] subject to Title 32, chapter 26-A or 26-B” of the Maine Revised Statutes.

Chapter 26-A prohibits the sale of packaging containing certain contaminants, including heavy metals, phthalates, and, when the DEP determines a safer alternative is available, PFAS in food packaging. Chapter 26-B contains mechanisms for the state to identify priority food contact chemicals and prohibit sales of food packaging containing those chemicals.

This second exemption has historically been interpreted as exempting food packaging from the reporting requirement. However, in an unexpected development, the state explained during the stakeholder engagement meeting and on its website that it interprets the exemptions for products subject to Chapters 26-A and 26-B as applying only after the DEP finalizes a rule identifying a safer alternative to PFAS in food packaging and prohibiting the use of PFAS in food packaging under Chapter 26-A or designates PFAS as a priority food contact chemical under Chapter 26-B.⁶ It has not yet done either. Consequently, DEP stated that food packaging containing intentionally added PFAS is subject to the Act’s reporting requirement and the 2030 total ban, pending any further action by the state under Chapters 26-A or 26-B. Notably, if the state were to prohibit the sale of food packages containing PFAS under Chapter 26-A, that prohibition would only apply to manufacturers of food or beverage products with total annual national sales of over $1 billion. However, this dollar threshold does not carry over to the state’s reporting requirement and general ban on PFAS in products under 38 MRS § 1614, described above.

Request for Extensions to the Reporting Deadline

Manufacturers that are in the process of determining whether their product contains intentionally added PFAS or are still gathering sufficient information to satisfy the reporting requirement can request an extension to the January 1, 2023 reporting deadline. These requests will be considered by DEP on a case-by-case basis. Requests for extensions should be submitted to [email protected]. The DEP publishes the names of manufacturers that have been granted an extension on its website.⁷

Revised Draft Regulations for Comment

DEP’s recently released revised draft regulations (referred to by DEP as the “second concept draft”) address several key areas of relevance for potential comments as well as compliance planning.

• Application to Food Packaging: As noted above, DEP’s narrow interpretation of the exemption for products subject to Chapters 26-A and 26-B, effectively subjecting food packaging to the reporting requirement, was surprising and unexpected. Affected manufacturers may want to seek clarity about the basis for DEP’s position in comments.
• Content of the Required Notification: The revised draft regulations propose to clarify certain items that must be included when reporting PFAS uses to the state, including how products must be identified and what constitutes an acceptable commercially available analytical method. In particular, the proposal would require that manufacturers provide for each notified product the estimated sales volume in Maine or nationally for that product for the full calendar year following the year in which the notification is submitted.
• Fees: The revised draft regulations propose that manufacturers pay an administrative fee of $250 for the first three notifications submitted and an additional $50 for each additional notification.
• Certificate of Compliance: Consistent with the statute, the revised draft regulations would permit DEP to require a manufacturer it believes is selling a product in violation of the reporting requirement to, within 30 days, provide the department with 1) a certification on forms provided by DEP attesting that the product does not contain intentionally added PFAS or 2) notify sellers of the product in Maine that the sale of the product is prohibited in Maine and provide documentation of those notified to the DEP.
• Currently Unavoidable Uses: The revised draft regulations propose a definition for “currently unavoidable use,” which describe factors the DEP will consider in conducting a later rulemaking to exempt certain uses of PFAS from the 2030 ban. Incorporated within the proposed definition of “currently unavoidable use” is the term “essential for health, safety, or the functioning of society,” also defined.⁸ During the October 27 stakeholder engagement meeting, the DEP noted the earliest it would begin any rulemaking to exempt PFAS uses from the 2030 ban on unavoidability grounds is at the end of 2023 or beginning of 2024.

How to Submit a Notification

DEP noted that it is in the process of creating a digital reporting database, but that such database will not be in use by January 1, 2023. In the October 27 stakeholder engagement meeting, it stated that it anticipates it will complete this rulemaking, finalize the revised draft regulations, and create the digital database to facilitate reporting by the spring of 2023. In the meantime, the state advised companies should submit their notifications to the state by email to [email protected] in an Excel spreadsheet or other electronic format or via mail. Manufacturers that submit a notification to the state before the reporting database is available must re-submit the notification using the digital database within 90 days of the effective date of the finalized regulations.

Next steps

As noted above, comments on the revised draft regulations are due November 10 and can be submitted by email to [email protected]. Companies can request an extension to the reporting requirement from the DEP via email [email protected].

We will continue to monitor developments regarding Maine PFAS reporting requirements and are available to assist with questions as well as the preparation of comments on the revised draft regulations.

Authored by Elizabeth Fawell, Andrea Bruce, and Connie Potter.

References

1 The law defines “manufacturer” as the person that manufactures a product or whose brand name is affixed to the product. 38 MRS § 1614(1)(E). “Intentionally added PFAS” are defined as “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.” They include any degradation by-products of PFAS. Id. § 1614(1)(D). The revised draft regulations (referred to by DEP as the “second concept draft”) further notes that the definition does not include products “that consist solely of PFAS” or “PFAS that is present in the final product as a contaminant.” Maine DEP, Second Concept Draft for the Maine PFAS in Products Program (2022), ¶ 2(M).

2 With the approval of the department, a manufacturer may supply the information for a category or type of product rather than for each individual product.

3 Per the revised draft regulations, DEP understands “commercially available analytical method” to mean a methodology used by a laboratory that performs PFAS testing for third parties. Methods developed at an in-house laboratory that are not identical to those offered by a third-party laboratory are not accepted.

4 Each of these items are described in more detail in the law and in the proposed regulations. Note the revised draft regulations propose requiring reporting of an additional item, estimated sales volume of each reported product in Maine or nationally.

5 Maine DEP, PFAS in Products, https://www.maine.gov/dep/spills/topics/pfas/PFAS-products/index.html#:~:text=In%20July%202021%2C%20Public%20Law,enacted%20by%20the%20Maine%20Legislature (see FAQ “Which products are exempted from the program?”). A recording of the stakeholder engagement meeting is linked on this page and available here, https://www.maine.gov/dep/ftp/temp/PFAS-in-Products/PFAS in Products Update-20221027_110938-Meeting Recording.mp4.

6  Id.

7  Id.

8 The revised draft regulations propose the following definitions for “Essential for Health, Safety or the Functioning of Society”: “Products that if unavailable would result in a significant increase in negative healthcare outcomes, an inability to mitigate significant risks to human health or the environment, or significantly interrupt the daily functions on which society relies. Products that are Essential for Health, Safety or the Functioning of Society include those that are required by Federal or State Laws and Regulations. Essential for the Functioning of Society includes but is not limited to climate mitigation, critical infrastructure, delivery of medicine, lifesaving equipment, public transport, and construction.” Maine DEP, Second Concept Draft for the Maine PFAS in Products Program (2022), ¶ 2(I).