Last call: Manufacturers face January 1, 2023 Maine deadline to report PFAS in products, but extensions may be available

Under Maine’s first-of-its-kind statute, 38 M.R.S. §1614, the Maine Department of Environmental Protection (DEP) is requiring 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” – to notify the State of all products, with minimal exceptions, offered for sale in the State that contain “intentionally added PFAS” by January 1, 2023. 38 M.R.S. §§ 1614(1)(E), (2).

Unfortunately, the DEP currently remains in the rulemaking process concerning such important aspects of compliance as clarifying definitions of terms not defined in the statute, identifying who is legally responsible for submitting notifications to DEP, clarifying what information must be submitted for each product, and potentially establishing limits for upstream manufacturer inquiry required for investigating PFAS content in product components and their sub-components. This lack of finalized regulation or guidance makes compliance complicated, including answering the threshold question of whether the law applies to a product and whether the DEP may grant a compliance extension based on a manufacturer’s unique circumstances.

Making matters more difficult, Maine’s new reporting law incorporates a broad definition of PFAS. See id, § 1(F) (defining “PFAS” as “substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom”) (emphasis added). This definition, which we are seeing other states adopt as well, may require Manufacturers to notify the State of regulated products that contain intentionally added compounds not presently listed as PFAS nor classified as such by the US Environmental Protection Agency or its sister agencies.

Compliance with Maine’s reporting requirement thus presents affected stakeholders with immediate, imprecise, and potentially burdensome obligations.

Compliance uncertainties

Maine’s “PFAS in Products” statute, 38 M.R.S. § 1614, prescribes a January 1, 2023 effective date for the product reporting obligation, which DEP has interpreted as an established deadline by which all manufacturers must report. See DEP PFAS in Products FAQs. DEP insists on this deadline notwithstanding its delay in implementing the statute’s requirements via rulemaking as required by 38 M.R.S. § 1614(10).

As a result, and absent DEP’s finalized rulemaking – which DEP indicated in an October 27, 2022 stakeholder meeting is unlikely to go into effect until spring 2023 at the earliest – regulated stakeholders face a quickly approaching deadline with substantial, risk-inducing uncertainties yet to be addressed through formal Agency implementation, including, but not limited to:

• Lack of submission procedures: There are presently no formal established processes or any electronic database for facilitating reporting submissions. DEP has indicated in its FAQs (linked above) that “preliminary” submissions should be sent by email to PFASproducts@maine.gov.
• Submission contents undetermined: The statute incorporates an initial, incomplete list of contents and information required with reporting submissions, which DEP plans to update and finalize as part of its implementing regulation. See 38 M.R.S. § 1614(2)(A)(5) (reporting to include “[a]ny additional information established by the department by rule as necessary to implement the requirements of this section.”).
• PFAS content reporting methodology: DEP has not yet identified nor approved PFAS ranges for reporting PFAS content in products. See id, § 2(A)(3) (manufacturers may report product PFAS content “as an exact quantity determined using commercially available analytical methods or as falling within a range approved for reporting purposes by the department”).
• Unknown fees: DEP has not yet established fees for reporting, which may be extensive. See id, § 6 (“The department may establish by rule and assess a fee payable by a manufacturer upon submission of the notification”).
• Minimal confidentiality protections: Other than preexisting State confidentiality protections – eg, the Maine Uniform Trade Secrets Act – the PFAS in Products statute does not expressly provide confidentiality protections for product-reporting Manufacturers. Absent DEP’s implementing rulemaking or potential future legislative amendment providing otherwise, reporting Manufacturers risk public exposure of submissions, potentially intensifying risks.

Compliance extensions may be available

Under its statutory authority, DEP has granted extensions to the product reporting submission requirement, on a case-by-case basis, for over one thousand entities. Given the upcoming January 1, 2023 reporting deadline, as well as the potentially time-consuming workstreams necessary for complying, it is imperative that entities requiring extensions request them from DEP as soon as possible by submitting an extension request letter to PFASProducts@Maine.gov.

The DLA Piper Environmental and Products Liability teams continue to monitor Maine PFAS in Products law updates in real time and to advise clients based on their individual circumstances. To learn more, please contact the authors.