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Maine’s Rulemaking for its PFAS Reporting Law Moves Forward

Stacks of binders of regulations

The Maine Board of Environmental Protection (BEP) voted in favor of moving the rulemaking process forward for the state’s PFAS reporting draft rule during a January 19, 2023, meeting. In developing this draft rule, the Maine Department of Environmental Protection (DEP) held two sessions where it invited input from the public on concept draft rules. Based on input received, DEP made several revisions to the draft.  

The next step of the rulemaking process is for Maine’s Secretary of State to publish a Notice of Rulemaking Proposal; the Notice will be published electronically and in several Maine newspapers, pursuant to the Maine Administrative Procedure Act (APA) (5 MRSA § 8001–11008) and the Secretary of State’s Rulemaking Guide. The Notice must be published 17 to 24 days prior to a scheduled public hearing. DEP indicated during the January 19 meeting that it does intend to hold a public hearing, which should, in part, allow for virtual participation. In addition, DEP indicated that it expects to hold the comment period open longer than the minimum of 10 days after the public hearing because it anticipates a large volume of comments. Exact details of the public hearing and comment period are not yet available, but we are monitoring these developments and BEP’s public meeting calendar and hearing agendas.

As we noted in our news article from January 3, 2023, Maine DEP changed its earlier position, summarized in our November 29, 2022, article, which subjected packaging and packaging components for products to Maine’s PFAS notification and reporting requirement, to no longer require notification and reporting for packaging and packaging components of products. At the BEP meeting, the Department cited a consensus based on the comments from multiple interest groups—environmental groups, public health groups, and private businesses—that Maine’s legislature intended an exemption of product packaging from reporting because the packaging and packaging components are covered by other programs in Maine, such as the Toxic Chemicals in Food Packaging law. DEP emphasized, however, that this exemption from reporting only applies to packaging and packaging components used in product and food packaging; the exemption does not apply to packaging, including food packaging, that is sold empty without product or food (e.g., glass jars, plates, plastic bags).

Lastly, as the draft reporting rule notes, the DEP aims to encourage voluntary compliance with the PFAS reporting law. However, the Department may take other enforcement steps if it is clear companies are not properly reporting PFAS in their products in the manner required by the law.