CHAPTER Env-Sw 2300  PER- AND POLYFLUOROALKYL SUBSTANCES PRODUCTS CONTROL PROGRAM

 

Statutory Authority: RSA 149-M:64, VI

 

PART Env-Sw 2301  PURPOSE AND APPLICABILITY

 

          Env-Sw 2301.01  Purpose.  The purpose of this chapter is to implement the provisions of RSA 149-M:64, relative to prohibiting certain PFAS-added consumer products from being sold, offered for sale, or distributed for sale or promotional purposes in New Hampshire.

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

          Env-Sw 2301.02  Applicability.  This chapter shall apply to consumer products sold, offered for sale, or otherwise distributed in New Hampshire that are subject to the product ban in RSA 149-M:64, IV.

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

PART Env-Sw 2302  DEFINITIONS

 

          Env-Sw 2302.01  “Consumer product” means “consumer product” as defined in RSA 149-M:64, I(d).

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

          Env-Sw 2302.02  “Department” means the department of environmental services.

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

          Env-Sw 2302.03  “Intentionally added PFAS” means “intentionally added PFAS” as defined in RSA 149-M:64, I(j).

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

          Env-Sw 2302.04  “Manufacturer” means “manufacturer” as defined in RSA 149-M:64, I(l).

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

          Env-Sw 2302.05  “PFAS” means “per- and polyfluoroalkyl substances” as defined in 40 CFR 705.3.

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

          Env-Sw 2302.06  “PFAS-added consumer product” means “PFAS-added consumer product” as defined in RSA 149-M:64, I(o).

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

          Env-Sw 2302.07  “Product” means “product” as defined in RSA 149-M:64, I(q).

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

          Env-Sw 2302.08  “Supplier” means “supplier” as defined in RSA 149-M:64, I(s).

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

PART Env-Sw 2303  CERTIFICATE OF COMPLIANCE

 

          Env-Sw 2303.01  Certificate of Compliance.

 

          (a)  Upon request by the department pursuant to (b) below, a manufacturer or supplier subject to this chapter shall provide a certificate of compliance, or a copy thereof, stating that the product is in compliance with RSA 149-M:64.

 

          (b)  A certificate of compliance shall be requested by the department if it determines, based upon any of the following, that a certificate is necessary to confirm that the product does not contain intentionally added PFAS:

 

(1) The department receives a public complaint indicating that the product might contain intentionally added PFAS;

 

(2)  The department receives information indicating that the product might contain intentionally added PFAS; or

 

(3)  Product testing of the product or similar products by the department or others indicates that the product might contain intentionally added PFAS.

 

          (c) Each certificate of compliance shall be sent electronically by email to PFASConsumerProducts@des.nh.gov and shall include the following:

 

(1)  Name and description of the consumer product;

 

(2)  Manufacturer or supplier name;

 

(3)  Manufacturer or supplier address;

 

(4)  Name, title, phone number, and email address of:

 

a.  An authorized official of the manufacturer or supplier; and

 

b.  An authorized individual who can answer questions regarding the composition of the consumer product;

 

(5)  Date the certificate of compliance is completed; and

 

(6)  A statement, signed by an authorized official, certifying that:

 

a.  The consumer product is not a PFAS-added consumer product; or

 

b.  For a consumer product for which an exemption has been granted under RSA 149-M:64, II, a statement identifying the applicable exemption.

 

          (d)  In accordance with RSA 149-M:64, V(e), a manufacturer or supplier who receives a request for a certificate of compliance from the department shall within 30 days:

 

(1)  Provide a certificate of compliance as specified in paragraph (c) above; or

 

(2)  Notify persons who sell the PFAS-added consumer product that the sale of the product is prohibited in New Hampshire and provide a copy of the notice to the department with a list of the names, addresses, phone numbers, and email addresses of those notified.

 

          (e)  If a manufacturer or supplier reformulates a product for which a certificate of compliance was requested, they shall provide a certificate of compliance pursuant to (c) above for the reformulated product prior to offering for sale or distribution.

 

          (f)  If a manufacturer or supplier produces a new product to replace a product for which a certificate of compliance was requested, they shall provide a certificate of compliance pursuant to (c) above for the new product prior to offering for sale or distribution.

 

          (g)  By signing a certificate of compliance, the party signing the certificate is certifying that:

 

(1)  The information provided is true, not misleading, and as complete as practicable, to the best knowledge and belief of the signer; and

 

(2)  The signer is aware that they might be subject to penalties for any false statements made in the certification, including those penalties specified in RSA 641:3 for unsworn falsification.

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

PART Env-Sw 2304 ADMINISTRATIVE FINE SCHEDULE

 

          Env-Sw 2304.01  Purpose.  The purpose of Env-Sw 2304 is to establish a schedule of fines which may be imposed under the authority of RSA 149-M:64, VII and RSA 149-M:38 for violations of RSA 149-M:64 or this chapter.

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

          Env-Sw 2304.02  Schedule of Fines.

 

          (a)  For selling, offering for sale, or distributing PFAS-added consumer products in violation of RSA 149-M:64, IV, the proposed fine shall be $2,000 for each violation.

 

          (b)  For submitting false or misleading information relating to any certificate of compliance required pursuant to RSA 149-M:64, V and Env-Sw 2300, the proposed fine shall be $2,000 for each violation.

 

          (c)  For failing to provide the department with a certificate of compliance within 30 days of receipt of a request, in violation of RSA 149-M:64, V(e)(1), the proposed fine shall be $1,750 per violation.

 

          (d)  For failing to notify persons who sell the product containing chemicals regulated under RSA 149-M:64 that the sale of the product is prohibited, and provide the department with a copy of the notice and a list of the names, addresses, phone numbers, and email addresses of those notified, within 30 days of receipt of a request, in violation of RSA 149-M:64, V(e)(2), the proposed fine shall be $1,750 per violation.

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

          Env-Sw 2304.03  Fines Amounts for Violations with No Previously Scheduled Fine.

 

          (a)  For the purposes of this section, the following definitions shall apply:

 

(1)  “Major deviation from requirement” means the violator deviated from a requirement of a statute or rule to such an extent that there is substantial non-compliance;

 

(2)  “Major potential for harm” means a substantial likelihood of causing harm to human health or the environment; 

 

(3)  “Minor deviation from requirement” means the violator deviated partially from a requirement of a statute or rule such that most of the requirement was met;

 

(4)  “Minor potential for harm” means a small likelihood of causing harm to human health or the environment; 

 

(5)  “Moderate deviation from requirement” means the violator significantly deviated from a requirement of a statute or rule but some requirements were implemented as intended, such that approximately half the requirements were met; and

 

(6)  “Moderate potential for harm” means a moderate likelihood of causing harm to human health or the environment.

 

          (b)  For violating the requirements of, or refusing to comply with, any of the provisions of this chapter or RSA 149-M:64 not identified in Env-Sw 2304.02, the proposed fine for each violation shall be calculated pursuant to Table 2304-1, below, based on the extent of deviation from the requirement and the potential for harm.

 

Table 2304-1: Matrix for Calculated Fines – Maximum Fine $2,000

 

 

Minor Deviation

from Requirement

Moderate Deviation

from Requirement

Major Deviation

from Requirement

Minor Potential for

Harm

range: $100 to $500 default: $250

range: $500 to $1,000 default: $750

range: $1,000 to $1,500 default: $1,250

Moderate Potential

for Harm

range: $500 to $1,000 default: $750

range: $1,000 to $1,500 default: $1,250

range: $1,500 to $2,000 default: $1,750

Major Potential for

Harm

range: $1,000 to $1,500 default: $1,250

range: $1,500 to $2,000 default: $1,750

$2,000

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

          Env-Sw 2304.04  Administrative Fine Hearings.  Env-C 200 shall apply to all administrative fine hearings and adjudication of the total proposed fine shall be in accordance with Env-C 204.24.

 

Source.  #14658, eff 7-18-26, EXPIRES: 7-18-36

 

 

APPENDIX A: STATE STATUTES IMPLEMENTED

 

Rule Sections

Statutes Being Implemented

Env-Sw 2300

RSA 149-M:64

Env-Sw 2304

RSA 149-M:38; RSA 149-M:64