Under the Dome Special Edition: Maine Department of Environmental Protection Proposes Listing Four New Priority Chemicals

Under the Dome: Inside the Maine State House is a regular update that provides a high-level overview of recent activity at the Maine State House. If you would like more specific information regarding an item in this newsletter or related to government relations, please contact a member of our Government Relations Practice Group: John Delahanty, Andrea C. Maker or Avery Day.

Maine Department of Environmental Protection Proposes Listing Four New Priority Chemicals – Cadmium, Formaldehyde, Mercury, and Arsenic.

On November 25, the Maine Department of Environmental Protection (“DEP”) published four separate proposed rules pursuant to Maine’s so called Kids Safe Products Act (Title 38, Chapter 16-D).  The Department has proposed elevating four chemicals on the list of 49 “chemicals of high concern” to “priority” status.  These four chemicals are: (1) cadmium; (2) formaldehyde; (3) mercury; and (4) arsenic.

Should these rules be adopted, various requirements will be triggered for manufacturers and distributors of consumer products containing these chemicals in amounts greater than de minimis levels.  For example, within 180 days of adoption of these proposed rules manufacturers and distributors must report information to the DEP regarding products containing these chemicals, units sold or distributed in Maine or nationally, the amount of the chemical in question in each unit, and the intended purpose of the chemical in question.  Companies reporting under these rules will also be assessed reporting fees.  Further, the DEP can request additional information of those reporting under this law and can require manufacturers and distributors to undertake an alternatives assessment or the Department may perform an alternatives assessment itself and assess fees on manufacturers to cover the costs of the assessment. 

These proposed rules will not directly result in sales prohibitions for specific product applications.  The Maine Board of Environmental Protection, however, may initiate rulemaking prohibiting the manufacture, sale, or distribution of consumer products containing priority chemicals, so there is potential for product bans to eventually flow from these four proposed rules.  Moreover, similar designations in Maine and other jurisdictions have resulted in product de-selection in the market place as products and chemicals are singled out for these listings.

Public hearings on these four proposed rules will be held on December 17 and the comment period for the proposed rules closes on January 10.  Please contact Ken Gray, Dixon Pike, or Avery Day to find out how these proposed rules would apply to your products or to seek guidance with comments on these rules and participating in the rulemaking process in general.