Maine’s Department of Environmental Protection (DEP) is soliciting proposals for currently unavoidable use (CUU) designations under the state’s statute regulating the use of perfluoroalkyl and polyfluoroalkyl substances (PFAS) in products. Under the law, companies may not sell, offer for sale, or distribute for sale in Maine any product that contains intentionally added PFAS beginning January 1, 2030, unless the use of PFAS in the product has been designated a CUU. DEP is now accepting proposals from those seeking such CUU determinations, which must be submitted by March 1, 2024. DEP then plans to initiate a rulemaking process concerning these initial CUU designations. In informal communications with stakeholders, DEP noted that it anticipates future rounds of CUU determinations prior to 2030; however, the current request for proposals represents an opportunity for the public to inform the process early on.

Background

On July 15, 2021, Maine enacted a law that restricts the use of PFAS in products under a phased approach, but which essentially bans the sale of any products that contain intentionally added PFAS starting January 1, 2030, unless DEP has determined by rule that a use of PFAS represents a CUU. The law also requires notification to DEP on intentionally added PFAS in products, with an original deadline of January 1, 2023, but a statutory amendment extended this notification deadline to January 1, 2025. That amendment did not affect the law’s material restriction or CUU provision, though the Maine Legislature’s Committee on Environment and Natural Resources held two public meetings in fall 2023 to discuss remaining concerns with the law that could result in further amendments.

“Currently unavoidable use” 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.” In 2022, DEP released two pre-rulemaking concept drafts to implement the law, and noticed a proposed rule on February 14, 2023. This proposed rule contained the following definitions of terms used in the statutory CUU definition:

• “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.

The proposed rule was not finalized.

These definitions – especially the proposed definition of “essential” – will be instrumental in determining how the regulator will assess the eligibility of applications for CUU exemptions. As proposed, the definitions are very narrow in scope and arguably much narrower than what is provided in the statute.

Although they were never finalized in regulations, DEP now appears to be proposing to employ the definitions for these three CUU terms in its evaluation of proposals on CUU designations. In informal communications with stakeholders, DEP indicated that there will be further opportunities to comment on the definitions, either through a restarted rulemaking from the 2023 proposed rule (which would be contingent on any changes the Maine Legislature may make to the statute in the current legislative session) or through DEP’s initial CUU rulemaking later this year.

Proposals are due by March 1, 2024; after that, DEP plans to promulgate a rule for the CUU designations. DEP also indicated in its informal communications that it anticipates future rounds of CUU determinations prior to 2030.

Proposal Requirements

DEP noted that proposals can 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.” DEP confirmed in follow-up correspondence with stakeholders that it will accept proposals from trade associations. In addition, DEP provided the following directions for the content of the proposals:

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, then the Harmonized Tariff System (HTS) code.
2. Describe the product’s intended use 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 reasonably available alternatives for this specific use of PFAS.
5. Provide contact information for the submission.

DEP also explained that “proposals will be made public as part of the rulemaking process, therefore they should not contain any Confidential Business Information.”

Rulemaking Schedule

After the proposal submission deadline of March 1, 2024, DEP anticipates the following rulemaking schedule to implement the initial CUU designations:

• May 2024 – DEP will issue a pre-rulemaking concept draft list of CUU for public input.
• September 2024 – DEP will initiate the rulemaking process for CUU designations by posting the rule to the Maine Board of Environmental Protection.
• January 2025 – DEP will submit the provisionally adopted rule to the legislature.

Commentary

The request for proposals was launched via an update on DEP’s website in early January 2024, and given the upcoming deadline of March 1, 2024, companies should prepare proposals now.

The solicitation comes amidst potential legislative efforts to amend the underlying statute, which DEP noted in informal correspondence with stakeholders may impact future rulemaking efforts. The solicitation also comes on the heels of a request for comments from the Minnesota Pollution Control Agency (MPCA) that will inform future drafting of a CUU rule to implement Minnesota’s PFAS in products law. Like with DEP’s solicitation, comments to the MPCA are due on March 1, 2024.

Beveridge & Diamond’s Chemicals Regulation practice group and Chemicals industry group provide strategic, business-focused advice to the global chemicals industry. We work with large and small chemical and products companies whose products and activities are subject to EPA’s broad chemical regulatory authority under TSCA and state chemical restrictions. Our Consumer Products and Product Stewardship, Global Supply Chains practices work with U.S. and multinational companies that make, distribute, transport, or sell consumer products in a hyper-competitive and evolving consumer goods market. We help identify, understand, and comply with complex regulatory requirements throughout the product lifecycle. For more information, please contact the authors.