Maine Contemplates Revisions to PFAS Ban and Reporting Regulations Amid Pending Legislation

Maine is reevaluating its groundbreaking regulations pertaining to per- and polyfluoroalkyl substances (PFAS) as the state's legislature and Department of Environmental Protection (MDEP) consider adjustments to their ambitious program. As the first movers in this regulatory landscape, Maine's actions are being closely monitored by other states.

Last August, Maine's legislature introduced far-reaching restrictions on PFAS-containing consumer products, setting a precedent for aggressive state action against these persistent chemicals. The legislation aims to ban the intentional use of PFAS in most products statewide by 2030, with exceptions granted for cases of "unavoidable use." Furthermore, the law requires companies operating in Maine to commence reporting the presence of PFAS in their products as of January 1, 2023.

In February, MDEP unveiled a highly anticipated proposed rule to provide additional guidance on reporting requirements and to establish definitions for key terms such as "intentionally added" and "unavoidable use." The proposed definition of "intentionally added" encompasses PFAS that serve a specific function or attribute in a product, including degradation byproducts with functional purposes or technical effects. However, it excludes PFAS present in the final product as contaminants. The proposal also seeks to limit "currently unavoidable uses" of PFAS to applications that MDEP determines, through rulemaking, to be essential for health, safety, or societal functioning, and for which reasonable alternatives do not exist. This approach would require future MDEP rulemakings to grant exemptions rather than leaving that decision to product manufacturers.

During a recent public hearing, MDEP announced that while it intends to move forward with the current proposed rulemaking, further revisions may be necessary due to pending legislation. Five PFAS-related bills have been introduced in both chambers of Maine's legislature, potentially prompting MDEP to revisit the regulatory process and overhaul the pending rule. Unfortunately, this delay puts the agency months behind the January 1 deadline for companies to commence reporting.

The collective impact of the pending bills would result in a redefinition of the types of PFAS covered by the law, exemption of businesses with ten or fewer employees, and an extension of reporting deadlines for PFAS manufacturers and users by up to one year. Here are the five bills currently under consideration:

• LD 217, HP0138: An Act to Support Manufacturers Whose Products Contain Perfluoroalkyl and Polyfluoroalkyl Substances – Rep. Dick Campbell of Orrington
• LD 304, HP0202: An Act to Establish Statewide Standards for Perfluoroalkyl and Polyfluoroalkyl Substances – Rep. Benjamin Hymes of Waldo
• LD 1214, SP0495: An Act to Clarify the Laws to Combat Perfluoroalkyl and Polyfluoroalkyl Substances Contamination – Sen. Joseph Baldacci of Penobscot
• LD 1273, SP0510: An Act to Exempt Some Businesses from Certain Laws Relating to Perfluoroalkyl and Polyfluoroalkyl Substances in Accordance with the Size of the Business – Sen. Trey Stewart of Aroostook
• LD 1537, SP0610: An Act to Amend the Laws Relating to the Prevention of Perfluoroalkyl and Polyfluoroalkyl Substances Pollution and to Provide Additional Funding – Sen. Henry Ingwersen of York