The Minnesota Pollution Control Agency (MPCA) has published a request for comments (RFC) on planned new rules governing currently unavoidable use (CUU) determinations for products containing per- and polyfluoroalkyl substances (PFAS). According to the RFC, the main purpose of the rulemaking is to establish criteria and processes through which MPCA will make decisions on what uses of intentionally added PFAS will qualify as CUUs in products sold, offered for sale, or distributed in Minnesota. Any such determinations must be published by rule by MPCA by January 1, 2032. MPCA states that it would appreciate comment on the following questions:
- Should criteria be defined for “essential for health, safety, or the functioning of society”? If so, what should those criteria be?
- Should costs of PFAS alternatives be considered in the definition of “reasonably available”? What is a “reasonable” cost threshold?
- Should unique considerations be made for small businesses with regard to economic feasibility?
- What criteria should be used to determine the safety of potential PFAS alternatives?
- How long should PFAS CUU determinations be good for? How should the length of the CUU determination be decided? Should significant changes in available information about alternatives trigger a re-evaluation?
- How should stakeholders request to have a PFAS use considered for CUU determination by MPCA? Conversely, could stakeholders request a PFAS use not be determined to be currently unavoidable? What information should be submitted in support of such requests?
- To get a sense of what type of and how many products may seek a CUU determination, please share what uses and products you may submit a request for in the future and briefly why. MPCA notes that there will be a future opportunity to present a full argument and supporting information for a possible CUU determination.
- Should MPCA make some initial CUU determinations as part of this rulemaking using the proposed criteria?
- Other questions or comments relating to defining CUU criteria and the process MPCA uses to make CUU determinations.
Comments are due 4:30 p.m. (CST) on March 1, 2024.
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National Law Review, Volume XIV, Number 12