State PFAS Notification Rules Present Complex Compliance Issues for Companies

2022-11-21

Manufacturers of products that contain even small quantities of per- and polyfluoroalkyl substances (PFAS) will soon be required to submit “notifications” to the Maine Department of Environmental Protection (DEP or the Department) providing intricate, and potentially commercially-sensitive, details concerning the chemical makeup of their consumer and commercial-use products. Complying with the impending January 1, 2023 deadline, when the proposed implementing regulations and an electronic reporting portal have not yet been revealed to the regulated community, will be a steep challenge. However, what also should be considered carefully by the countless companies preparing reports is whether they will be revealing information that could implicate compliance issues under existing federal regulatory requirements, such as the federal Toxic Substances Control Act (TSCA).

Background

Maine and a number of other states will soon be the recipients of reports to be submitted by the many US manufacturers and distributors of consumer and commercial-use products that contain “intentionally added” PFAS. The pertinent statute in Maine is the Act to Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution, 38 M.R.S. § 1614, enacted in 2021. Understandably, the state’s program is of considerable interest to those who will be affected. The Department held a recent stakeholder meeting that was attended online by nearly 500 persons. It was the second public meeting addressing Maine’s steps that are preceding an eventual rulemaking process. To date, the Department has issued two pre-rulemaking “concept drafts” (in June and then late October of this year), each soliciting enormous attention and feedback in the form of written comments. What has become apparent from the discussions during the public meetings is that the Department does not intend to extend the statutory deadlines for the product sales prohibitions (i.e., PFAS-containing floor coverings, consumer-use fabric treatment) which take effect on January 1, 2023.

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Arnold & Porter, 21-11-22
; https://www.arnoldporter.com/en/perspectives/advisories/2022/11/state-pfas-notification-rules-present-complex