An Act To Require Reporting of Perfluoroalkyl and Polyfluoroalkyl Substances, PFAS, in Products and of Discharges of Firefighting Foam Containing PFAS
Maine Legislature, Session 130, LD 0960
Committee: Environment and Natural Resources
Sponsors: FAY
Amends: 38 MRSA §417-B, 38 MRSA §1310-B, 38 MRSA §1612

Legislative Document
No. 960
H.P. 706
House of Representatives, March 9, 2021
An Act To Require Reporting of Perfluoroalkyl and Polyfluoroalkyl 
Substances, PFAS, in Products and of Discharges of Firefighting 
Foam Containing PFAS
Submitted by the Department of Environmental Protection pursuant to Joint Rule 204.
Reference to the Committee on Environment and Natural Resources suggested and ordered 
printed.
ROBERT B. HUNT
Clerk
Presented by Representative FAY of Raymond.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  38 MRSA §417-B is enacted to read:
§417-B.  Reporting discharges of aqueous film-forming foam
1.  Definitions.  As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings.
A.  "Aqueous film-forming foam" or "AFFF" means a fire suppressant foam containing 
fluorinated surfactants intended for extinguishing flammable liquid fires.
B.  "Discharge" means a release by any means, including, but not limited to, spilling, 
leaking, pumping, pouring, spraying, emitting, disposing, escaping, emptying or 
dumping, whether intentional or unintentional.
C.  "Person" means a natural person, firm, association, partnership, corporation or trust; 
the State or any agency of the State; a governmental entity or quasi-governmental 
entity; the United States or any agency of the United States; or any other legal entity.
2.  Reporting.  A person causing a discharge of AFFF into or upon any coastal waters, 
estuaries, tidal flats, beaches and lands adjoining the seacoast of the State or into or upon 
any lake, pond, river, stream, sewer, surface water drainage, groundwater or other waters 
of the State or any public or private water supply or onto lands adjacent to, on or over such 
waters of the State shall report the discharge to the department as soon as practicable, but 
no later than 24 hours after the discharge occurs.
Sec. 2.  38 MRSA §1310-B, sub-§2, as amended by PL 2019, c. 291, Pt. B, §1, is 
further amended to read:
2.  Hazardous waste information and information on mercury-added products 
and electronic devices; chemicals; recyclables Information designated as confidential.  
Information relating to hazardous waste submitted to the department under this subchapter, 
information relating to mercury-added products submitted to the department under chapter 
16-B, information relating to electronic devices submitted to the department under section 
1610, subsection 6-A, information related to products containing PFAS, as defined in 
section 1612, subsection 1, paragraph D, submitted to the department under section 1612, 
information related to priority toxic chemicals submitted to the department under chapter 
27, information related to products that contain the "deca" mixture of polybrominated 
diphenyl ethers submitted to the department under section 1609 or information related to 
reporting on reportable recyclable materials submitted to the department under section 
2145 may be designated by the person submitting it as being only for the confidential use 
of the department, its agents and employees, the Department of Agriculture, Conservation 
and Forestry and the Department of Health and Human Services and their agents and 
employees, other agencies of State Government, as authorized by the Governor, employees 
of the United States Environmental Protection Agency and the Attorney General and, for 
waste information, employees of the municipality in which the waste is located.  The 
designation must be clearly indicated on each page or other portion of information.  The 
commissioner shall establish procedures to ensure that information so designated is 
segregated from public records of the department.  The department's public records must 
include the indication that information so designated has been submitted to the department, 
giving the name of the person submitting the information and the general nature of the 
information.  Upon a request for information, the scope of which includes information so 
designated, the commissioner shall notify the submittor.  Within 15 days after receipt of 
the notice, the submittor shall demonstrate to the satisfaction of the department that the 
designated information should not be disclosed because the information is a trade secret or 
production, commercial or financial information, the disclosure of which would impair the 
competitive position of the submittor and would make available information not otherwise 
publicly available.  Unless such a demonstration is made, the information must be disclosed 
and becomes a public record.  The department may grant or deny disclosure for the whole 
or any part of the designated information requested and within 15 days shall give written 
notice of the decision to the submittor and the person requesting the designated information.  
A person aggrieved by a decision of the department may appeal only to the Superior Court 
in accordance with the provisions of section 346.  All information provided by the 
department to the municipality under this subsection is confidential and not a public record 
under Title 1, chapter 13.  In the event a request for such information is submitted to the 
municipality, the municipality shall submit that request to the commissioner to be 
processed by the department as provided in this subsection.
Sec. 3.  38 MRSA §1612 is enacted to read:
§1612.  Products containing PFAS
1.  Definitions.  As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings.
A.  "Final product" means any product, including its components, sold or distributed 
for personal, residential, commercial or industrial use, including materials used to 
manufacture other products.
B.  "Intentionally added PFAS" means PFAS added to a final product or one of its 
product components to provide a specific characteristic, appearance or quality or to 
perform a specific function.  "Intentionally added PFAS" includes any degradation 
by-products of those PFAS.
C.  "Manufacturer" means any person who created a final product or whose brand name 
is affixed to the product. In the case of a product that was imported into the United 
States, "manufacturer" includes the importer or first domestic distributor of the product 
if the person who manufactured or assembled the product or whose brand name is 
affixed to the product does not have a presence in the United States.
D.  "Perfluoroalkyl and polyfluoroalkyl substances" or "PFAS" means any member of 
the class of fluorinated organic chemicals containing at least one fully fluorinated 
carbon atom.
E.  "Product" means an item manufactured, assembled, packaged or otherwise prepared 
for sale to consumers.
F.  "Product component" means a portion of a final product.  A product component 
may be created by the same manufacturer that created the final product or by a different 
manufacturer.
2.  Notification.  The following provisions govern notification.
A.  Effective January 1, 2023, a manufacturer of a final product for sale in the State 
that contains intentionally added PFAS shall submit to the department a written 
notification, unless the notification requirement is waived by the department pursuant 
to this section.  The written notification must include:
(1)  A brief description of the final product;
(2)  The purpose for which PFAS are used in the final product, including its product 
components;
(3)  The amount of PFAS, by individual chemical abstracts service registry 
number, in each final product, reported as an exact quantity determined using 
commercially available analytical methods or as falling within a range approved 
for reporting purposes by the department; and
(4)  The name and address of the manufacturer and the name, address and phone 
number of a contact person for the manufacturer.
B.  With the approval of the department, a manufacturer may supply the information 
required in paragraph A for a product category rather than for an individual final 
product.
C.  The manufacturer shall update and revise the information in the written notification 
required in paragraph A whenever there is significant change in the information, as set 
forth in department rules adopted under subsection 9, or when requested by the 
department.
3.  Waiver of notification; extension of deadline.  The department may waive all or 
part of the notification requirement under subsection 2 if the department determines that 
substantially equivalent information is already publicly available. The department may 
extend the deadline for submission by a manufacturer of the information required under 
subsection 2 if the department determines that more time is needed by the manufacturer to 
comply with the submission requirement.
4.  Exemptions.  The following provisions govern exemptions.
A.  A retailer is exempt from subsection 6 unless that retailer knowingly sells a product 
containing PFAS after that retailer has received notification in accordance with 
subsection 7, paragraph B.
B.  The following products are exempt from this section:
(1)  A final product for which federal law governs notice of the presence of PFAS 
in the product in a manner that preempts state authority; and
(2)  A product subject to Title 32, chapter 26-A or 26-B.
5.  Fees.  The department may assess a fee payable by a manufacturer upon submission 
of the notification required under subsection 2 to cover the department's reasonable costs 
in managing the information collected. Fees must be established in department rules as set 
forth in subsection 9.
6.  Failure to provide notice.  A final product containing PFAS may not be sold, 
offered for sale or distributed for sale in this State if the manufacturer has failed to provide 
the information required under subsection 2. The department shall exempt a final product 
from this prohibition if, in the department's judgment, the lack of availability of the final 
product could pose an unreasonable risk to public health, safety or welfare.
7.  Certificate of compliance.  If the department has evidence that a final product is 
being offered for sale in violation of this section, the department may request the 
manufacturer of the final product to provide a certificate of compliance with this section. 
Within 30 days of receipt of a request under this subsection, the manufacturer shall:
A.  Provide the department with the certificate of compliance attesting that the final 
product does not contain intentionally added PFAS; or
B.  Notify persons who sell the final product in this State that the sale of the final 
product is prohibited and provide the department with a list of the names and addresses 
of those notified.
8.  Confidentiality.  Information submitted to the department pursuant to this section 
is subject to the confidentiality provisions under section 1310-B.
9.  Rules.  The department shall adopt rules to implement this section. Rules adopted 
pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, 
subchapter 2-A.
SUMMARY
This bill requires manufacturers of products with intentionally added perfluoroalkyl 
and polyfluoroalkyl substances to report the presence of those substances in those products 
to the Department of Environmental Protection beginning in 2023.  This bill also requires 
any person who causes a discharge of aqueous film-forming foam into waters of the State 
to report that discharge to the department within 24 hours.