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January 9, 2024

MDEP Begins Accepting Requests for Proposed Currently Unavoidable Uses of PFAS

Lynn L. Bergeson Carla N. Hutton

In 2021, Maine enacted “An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution.” Under the statute, beginning January 1, 2030, any product containing intentionally added PFAS may not be sold in Maine unless the use of PFAS in the product is specifically designated as a currently unavoidable use (CUU) by the Maine Department of Environmental Protection (MDEP). According to MDEP’s website, CUU determinations must be made through major substantive rulemaking, meaning that first the Board of Environmental Protection will adopt the CUUs and then the legislature will review them. To bring CUU proposals to the legislature in 2025, MDEP is accepting requests for proposals from those seeking CUU determinations. Manufacturers may submit proposals individually or collectively. MDEP notes that these determinations will be for uses of PFAS in products within specific industrial sectors and that a separate proposal must be submitted for each individual product category. Proposals are due March 1, 2024, and should be submitted to

MDEP provides the following list of submission requirements:

  • 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.
  • Describe the intended use of the product and explain how it is essential for health, safety, or the functioning of society.
  • 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.
  • Describe whether there are alternatives for this specific use of PFAS that are reasonably available.
  • Provide contact information for the submission.

MDEP notes that submitted proposals will be made public as part of the rulemaking process, therefore the proposals should not contain any confidential business information (CBI).

MDEP’s anticipated rulemaking schedule includes the following dates:

  • January – March 2024: Proposals for CUUs are submitted to MDEP.
  • May 2024: MDEP issues a pre-rulemaking concept draft list of CUUs for public input.
  • September 2024: MDEP initiates the rulemaking process for the CUU designations by posting the rule to the Board of Environmental Protection.
  • January 2025: MDEP submits the provisionally adopted major substantive rule to the legislature.

MDEP notes that the concept of CUU does not exempt manufacturers from the notification requirements outlined in 38 M.R.S. Section 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 MDEP. Products or product components with approved instances of CUU will be exempt from the 2030 sales prohibition.