PFAS in Products: Currently Unavoidable Uses

The Department will begin a process to identify Currently Unavoidable Uses (CUUs) pursuant to 38 M.R.S. §1614 in early 2024. CUU determinations must be made through major substantive rulemaking, meaning they must first be adopted by the Board of Environmental Protection and then submitted to the legislature for review. To bring CUU proposals to the legislature in 2025, the Department will be soliciting proposals and public comment as outlined below.

Statute defines CUU as “a use of PFAS that the department has determined by rule under this section to be essential for health, safety or the functioning of society and for which alternatives are not reasonably available.” 38 M.R.S. §1614(1)(B). Additional definitions proposed in the draft Chapter 90 to be incorporated into the CUU rulemaking are included below.

Proposed Schedule and Requirements

Beginning January 2024, the Department is acepting requests for proposals from those seeking CUU determinations. Proposals may be submitted by manufacturers individually or collectively. These 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 Department requests that manufacturers submit their proposals by March 1, 2024, and should be submitted to PFASProducts@maine.gov.

Submission Requirements

1. Provide a brief description of the type of product including, if applicable, the Global Product Classification (GPC) brick category and code, or if GPC is not applicable than the Harmonized Tariff System (HTS) code.

2. Describe the intended use of the product and explain how it is essential for health, safety or the functioning of society.

3. Describe how the specific use of PFAS in the product is essential to the function of the product. If this use of PFAS is required by federal or state law or regulation, provide citations to that requirement.

4. Describe whether there are alternatives for this specific use of PFAS which are reasonably available.

5. Provide contact information for the submission.
   

Please note these proposals will be made public as part of the rulemaking process, therefore they should not contain any Confidential Business Information.

Anticipated Rulemaking Schedule

January - March 2024, proposals for CUUs are submitted to the Department.

May 2024, Department issues a pre-rulemaking concept draft list of CUU for public input.

September 2024, Department initiates the rulemaking process for the CUU designations by posting the rule to the Board of Environmental Protection.

January 2025, Department submits the provisionally adopted major substantive rule to the Legislature.

Please note that the concept of CUU does not exempt manufacturers from the notification requirements outlined in 38 M.R.S. §1614(2)(A), as currently in effect. All products or product components sold, offered for sale, or distributed for sale in Maine that contain intentionally added PFAS must be reported to the Department. Products or product components with approved instances of CUU are exempt from the 2030 sales prohibition.

The Department is committed to developing rule proposals with public participation, comments, and suggestions from those most affected by the rules. For more information, please contact the Department directly by e-mail at PFASProducts@Maine.gov.

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Definitions

“Alternative” means 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” means 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” means 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.

Updated January 10, 2024