The Maine Department of Environmental Protection (DEP) is now accepting proposals from entities that wish to obtain currently unavoidable use (CUU) designations under the PFAS in Products statute.

This statute allows the DEP to exempt those products in which the use of PFAS is a CUU from the January 1, 2030 ban on the sale in Maine of any product containing intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS). A CUU is defined in the statute 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.”

DEP currently interprets “reasonably available” to mean a PFAS alternative that is readily available in sufficient quantity and at a comparable cost to the PFAS it is intended to replace and performs as well or better than the specific application of the PFAS in a product or product subcomponent.

Proposals must include descriptions of:

• The type of product, including, if applicable, the Global Product Classification brick category and code or the Harmonized Tariff System code
• The intended use of the product and how it is essential for the health, safety, or functioning of society
• How the specific use of PFAS in the product is essential to the function of the product
• Whether there are alternatives for this specific use of PFAS that are reasonably available

CUU designation proposals submitted to the DEP will be made public as part of the rulemaking process, and therefore should not contain any Confidential Business Information. Moreover, the concept of a potential CUU designation does not exempt manufacturers from the reporting requirements outlined in the PFAS in Products statute, which are currently drafted to go into effect on January 1, 2025.

Importantly, the DEP has not finalized any rules implementing the PFAS in Products statute, including those that would define what is “essential for the health, safety, or functioning of society” and that would set parameters for determining whether “alternatives are not reasonably available.” While the DEP circulated to stakeholders and ultimately the Maine Board of Environmental Protection (BEP) Chapter 90 pre-rulemaking drafts that implemented the statute, those were never finalized in regulations.

Accordingly, the DEP CUU proposal solicitation is a good opportunity for businesses to suggest parameters by which the DEP would evaluate CUU exemptions from the 2030 ban.

While legislative efforts to amend the PFAS in Products statute are underway amid a growing outcry from businesses across industries regarding the burden and impossibility of compliance, the DEP is nevertheless forging ahead with this major substantive rulemaking.

The DEP anticipates the following rulemaking schedule:

• January - March 2024: proposals for CUUs are submitted to the Department
• May 2024: DEP issues a pre-rulemaking concept draft list of CUU for public input
• September 2024: DEP initiates the rulemaking process for the CUU designations by posting the rule to the BEP
• January 2025: DEP submits the provisionally adopted rule to the Legislature

CUU designation proposals may be submitted by manufacturers individually or collectively, as the DEP has stated that determinations will be for uses of PFAS in products within specific industrial sectors. A separate proposal must be submitted for each individual product category.

The deadline for manufacturers to submit their proposals is March 1, 2024. For assistance in drafting your CUU designation proposal.