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29 January 20247 minute read

Maine and Minnesota regulators seek public input on currently unavoidable use exemptions from PFAS in Products laws

March 1, 2024 is a key date for businesses to keep in mind for their per- and polyfluoroalkyl substances (PFAS) compliance programs. Both Maine and Minnesota have set that date for comments and submissions related to identification of currently unavoidable uses (CUUs) of PFAS in products.

The Maine Department of Environmental Protection (DEP) is soliciting proposals from stakeholders (ie, companies and businesses that conduct commerce in Maine of PFAS-containing products) for CUU determinations under Maine’s PFAS in Products law, 38 M.R.S. § 1614. Meanwhile, Minnesota’s Pollution Control Agency (MPCA) has requested input on its CUU identification process under the state’s PFAS in Products law, Minn. Stat. § 116.943.

Ultimately, the goal of the CUU process will be securing exemption from upcoming restrictions on products which contain PFAS. DEP and MPCA have both requested public participation in these processes.

Maine DEP solicits proposals for CUU determinations

Enacted in 2021 and since amended by the state legislature, Maine’s first-of-its-kind PFAS in Products law regulates PFAS in nearly all products. This includes a reporting requirement effective in 2025 and a subsequent sales prohibition within the state beginning January 1, 2030. However, DEP may issue rulemakings which designate the use of PFAS in specific products or product categories as a CUU and exempt those products from the law’s upcoming prohibitions. A CUU designation will not excuse manufacturers of designated products from the reporting requirement.

Standard for CUU determinations

DEP may deem a use of PFAS to be a CUU if the use is “essential for health, safety or the functioning of society and for which alternatives are not reasonably available.” DEP proposed the following definitions to coincide with the CUU definition, which were previously included in DEP’s now-sidelined, pre-amendment draft rule noticed on February 14, 2023:

  • Alternative: “a substance or chemical that, when used in place of PFAS, results in a functionally equivalent product and that, when compared to a PFAS that it could replace, would reduce the potential for harm to human health or the environment, or has not been shown to pose the same or greater potential for harm to human health or the environment as that PFAS. Alternatives include reformulated versions of products, including versions reformulated by removal or addition of one or more chemicals or substances, that result in the reduction or removal of intentionally added PFAS from the product. Alternatives also include changes to the manufacturing process that result in the reduction or removal of PFAS from a product.”
  • Essential for Health, Safety, or the Functioning of Society: “products or product components that if unavailable would result in a significant increase in negative healthcare outcomes, an inability to mitigate significant risks to human health or the environment, or significantly interrupt the daily functions on which society relies. Products or product components that are Essential for Health, Safety or the Functioning of Society include those that are required by federal or state laws and regulations. Essential for the Functioning of Society includes but is not limited to climate mitigation, critical infrastructure, delivery of medicine, lifesaving equipment, public transport, and construction.”
  • Reasonably available: “a PFAS alternative which is readily available in sufficient quantity and at a comparable cost to the PFAS it is intended to replace and performs as well as or better than PFAS in a specific application of PFAS in a product or product component.”

Proposal scope, requirements, and deadlines

CUU proposals submitted to DEP must include the following information:

  • Description of the type of product, including the Global Product Classification (GPC) brick category and code, or the Harmonized Tariff System (HTS) code
  • Description of intended use of product
  • Explanation of how product is essential for health, safety, or functioning of society
  • Description of how the specific use of PFAS in the product is essential to the function of the product
  • Where use of PFAS is required by federal or state law, provide citations to the relevant requirement(s)
  • Description of whether there are alternatives for this specific use of PFAS that are reasonably available, and
  • Contact information.

Separate proposals must be submitted for each individual product category. Importantly, DEP plans to make all proposals public during the rulemaking process and instructs submitters not to include any confidential business information in submissions.

Proposals may be submitted by manufacturers individually or collectively (eg, by trade organizations) and must be submitted to DEP no later than March 1, 2024.

Although DEP will likely facilitate additional rounds of CUU evaluations leading up to the 2030 prohibitions, this round of determinations provides an early opportunity for stakeholders to influence the overall CUU determination process and obtain more immediate regulatory certainty for their products.

Minnesota seeks public input on CUU determination rulemaking

Similar to Maine’s law, Minnesota’s law imposes a reporting requirement (though Minnesota’s takes effect in 2026) and a phased sale and distribution ban between January 1, 2025 and January 1, 2032. MPCA may also identify PFAS CUUs and exempt impacted products from the law’s prohibitions on sale and distribution, but not the reporting requirement. Minnesota’s law similarly defines a CUU as “a use of PFAS … essential for health, safety, or the functioning of society and for which alternatives are not reasonably available.”

However, rather than seeking proposals for particularized CUUs at this time, MPCA is first seeking public input on how to conceptualize its CUU criteria and review framework. Notably, Minnesota has statutorily identified several categories of products which are subject to earlier sale and distribution prohibitions in 2025 and in which PFAS use may not be designated as a CUU. These include:

  • Carpets or rugs
  • Cleaning products
  • Cookware
  • Cosmetics
  • Dental floss
  • Fabric treatments
  • Juvenile products
  • Menstruation products
  • Textile furnishings
  • Ski wax, and
  • Upholstered furniture.

Request for comments scope and timeline

MPCA recently published a request for comments seeking public input on definitions and criteria the agency should use when evaluating and deciding which uses of intentionally added PFAS qualify as CUUs. In developing its CUU rule, MPCA seeks feedback on specific questions and concepts, including:

  • How to define criteria for “essential for health, safety, or the functioning of society”
  • Whether to consider costs of PFAS alternatives in the definition of “reasonably available”
  • Whether to offer unique economic feasibility considerations to small businesses
  • Which criteria to consider when determining the safety of potential PFAS alternatives
  • The length of CUU determination effectiveness and possible triggers for re-evaluation
  • Procedures for stakeholders to propose CUU designation for products
  • Forecasting uses and products for which stakeholders may seek CUU determinations, and
  • Whether to make initial CUU determinations as part of first CUU rulemaking.

MPCA will consider other relevant questions and comments as well. Public comments are due to MPCA by 4:30 pm on March 1, 2024.

Looking ahead

As Maine and Minnesota forge ahead with implementing their wide-reaching PFAS in Products laws, stakeholders are advised to evaluate agency requests for public input and provide feedback if desired.

DLA Piper’s Environmental team and cross-disciplined PFAS Task Force advises and assists businesses in navigating the ins and outs of the complex state PFAS regulatory landscape. To learn more, please contact the authors.