The Maine DEP’s PFAS in Products Program has released its long-awaited Chapter 90 concept draft language (the “PFAS in Products Rule”) for implementation of Maine’s recently-amended “PFAS in Products Law.” The concept draft provides additional details on sales prohibitions for products and product components containing intentionally added PFAS, along with criteria DEP will require as part of forthcoming Currently Unavoidable Use (“CUU”) proposals for products or product categories with upcoming sale prohibitions in the State.
The release of the concept draft of the PFAS in Products Rule was made as part of an informal outreach process through which DEP is soliciting public input. Comments are due August 30, 2024; DEP plans to proceed with formal rulemaking later this fall.
“Currently unavoidable use” is defined in Maine’s PFAS in Products Law as a use of PFAS that DEP has determined by rule to be “essential for health, safety or the functioning of society and for which alternatives are not reasonably available.” See 38 M.R.S. § 1614.
Notably, under the concept draft the Department will only consider CUU proposals submitted between 18 and 36 months in advance of an applicable sales prohibition. Thus, absent an exemption to this timeframe, it does not appear DEP will entertain any CUU proposals for the following products or product categories containing intentionally added PFAS with sales prohibitions set to take effect on January 1, 2026:
- cleaning products
- cookware products
- cosmetic products
- dental floss
- juvenile products
- menstruation products
- textile articles
- ski wax
- upholstered furniture
Similarly, it appears DEP would not begin to consider CUU proposals for artificial turn and outdoor apparel for severe wet conditions not otherwise accompanied by a PFAS disclosure—the next two product categories with sales bans set to take effect January 1, 2029—until January 1, 2026 at the earliest.
Individuals with comments on or concerns regarding the concept draft are encouraged to e-mail DEP’s PFAS in Products Program at PFASproducts@maine.gov.
Preti Flaherty's Environmental Practice Group is closely monitoring Maine DEP's efforts regarding PFAS-related matters. Contact Kevin Osantowski or David Van Slyke if you have any questions on this topic.
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Preti Flaherty attorneys David Van Slyke and Kevin Osantowski contributed to this article.
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