DES postpones PFAS 'certificate of compliance' rule amid concerns about discretionary requests and fines

The committee considered the Department of Environmental Services' PFAS products-control rules, which include a mechanism for the agency to request a 'certificate of compliance' from product manufacturers. Committee members cautioned that, as written, the rule leaves too much discretion to the agency and lacks clear triggers for when a certificate may be requested, which could enable unequal treatment or weaponization against smaller firms.

DES officials said the statute already limits the kinds of products subject to review (food packaging, juvenile products, textile furnishings, cosmetics and ski waxes), and that the added rule language requires the department to state the basis for any request — for example market surveillance, a complaint, a product review or absence from the department's database. DES said the certificate is a simple attestation (name, contact and confirmation no intentionally added PFAS as of Jan. 1, 2027) and that the program in New Hampshire is narrower than in other states.

Lawmakers asked for more explicit criteria for when the department would initiate a request — such as a verified complaint, a product not found in a registration database, or evidence from another state's tests — because the proposed sanction for failing to provide a certificate (a proposed fine) could be costly for smaller manufacturers. Representative concerns focused on whether the agency would pursue sophisticated manufacturers only, or also smaller or foreign suppliers whose supply chains might contain PFAS unintentionally.

Outcome: The committee granted a waiver and postponed the item to the next meeting to allow the agency to propose narrower, clearer criteria and to address concerns about enforcement discretion and the fine schedule.

Next steps: DES said it will consider clarifying triggers for requests, refine definitions (including what constitutes 'intentionally added' PFAS by end manufacturer), and may return with narrower rule text or seek further rulemaking after gathering program experience.