Maine Releases Draft Language Clarifying Proposals for Currently Unavoidable PFAS

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This August, the Maine Department of Environmental Protection (DEP) released draft language to implement April 2024 amendments to Maine’s PFAS in products legislation.  The draft language was described by DEP as an “initial, informal outreach process” with the goal of initiating rulemaking this fall.

Under Maine’s PFAS in Products law, DEP has broad authority to determine whether PFAS uses are “currently unavoidable.”  Currently unavoidable uses (CUUs) will be granted a five-year exemption to the amended statute’s incremental sales prohibitions for products containing intentionally added PFAS.

Tight timelines

Under the draft language, CUU proposals would only be accepted 18–36 months prior to the applicable sales prohibition or 12–24 months prior to the expiration of an existing CUU determination.  However, sales prohibitions for cleaning products, cookware, cosmetics, and other products containing intentionally added PFAS take effect in less than 18 months (January 1, 2026).  In an October 1 email, DEP stated that they “recognize the tight timeline with the new statutory prohibitions starting in 2026 and are making efforts to streamline the process as much as possible.”

DEP solicited currently unavoidable use proposals for the 2026 prohibitions earlier this year, before the April amendments forced the department to redraft its rulemaking.  In the email, DEP clarified that they are “still considering” whether they will be able to utilize some of the previously submitted information and that “manufacturers may need to resubmit information” to meet the requirements of the eventual final rule.

Proposal requirements

According to the draft language, proposals for CUU determinations could be submitted by manufacturers individually or collectively.  A separate proposal would be required for each combination of product category and industrial sector.  As part of the proposal, manufacturers would be required to include:

  • An explanation of why use of PFAS in the product is “essential for health, safety or the functioning of society” and “essential to the function of the product”;
  • A description of whether alternatives to the use of PFAS are reasonably available;
  • Information on whether and how other states have regulated the use of PFAS in the product; and
  • Known or reasonably ascertainable information on the product’s health and environmental impacts.

The draft language “strongly recommends that all proposals for currently unavoidable use determinations do not contain claims of confidentiality” because “the Department may determine that there is insufficient publicly available information to justify a rulemaking.”

Other provisions of the draft rulemaking, including the notification requirements for manufacturers of products covered by a currently unavoidable use determination, largely mirror the requirements of the amended statute.  More information on the April 2024 amendments can be found in a previous blog post.