As we’ve posted here before, by statutory enactment, Maine intends to ban the sale, marketing, and distribution of products or product components containing intentionally added PFAS, effective January 1, 2030. 38 M.R.S. § 1614. This follows Maine’s notification requirements for products containing intentionally added PFAS, which is effective January 1, 2025. The statute allows for a category of exemptions from the sweeping product ban, where covered products are designated by Maine’s Department of Environmental Protection (DEP) as a “Currently Unavoidable Use” (CUU). Maine DEP is currently soliciting proposals for CUU designations, which must be submitted by March 1, 2024. Note that CUU designations are not intended to exempt a covered product from the notification requirements under the statute – only from Maine’s ban on sales, offers for sale, and distribution.
The agency has offered some guideposts for companies that find their products or product components subject to the ban. In the statute itself, a CUU is defined as “a use of PFAS that the department has determined by rule under this section to be essential for the health, safety or functioning of society and for which alternatives are not reasonably available.” 38 M.R.S. § 1614(1)(B). And on its website for the CUU rulemaking process, Maine DEP provides definitions for several of the concepts contained in the statutory CUU definition, including the terms “alternative,” “essential for the health, safety or functioning of society” and “reasonably available,” based on language originally found in a proposed rule that Maine DEP issued on February 14, 2023 but did not finalize. The website also provides instruction on the requirements of a CUU submission. Media reports have suggested that Maine DEP may consider additional proposals for CUU designations in future years before the state’s full ban goes into effect in 2030, but the March 1, 2024 deadline is the only opportunity for submittals that has been announced to date.
Minnesota, which has adopted a similar CUU framework for exemptions from its forthcoming statutory ban of products containing intentionally added PFAS, is itself accepting comments through the Minnesota Pollution Control Agency (“MPCA”) to help the agency “establish criteria and processes through which the MPCA will make decisions on what if any uses of intentionally added PFAS will qualify as currently unavoidable uses in products sold, offered for sale, or distributed in Minnesota.” Minnesota’s public comment period is also open through March 1, 2024. Those looking for certainty about the treatment of their product lines within Maine and Minnesota should give strong consideration to submitting their comments on these CUU rules (and in Maine’s case, submitting their CUU proposals) now, rather than waiting until the sales bans become effective in 2030 (Maine) and 2032 (Minnesota). We will keep you posted.
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