As discussed in our prior alert, Maine’s Department of Environmental Protection (DEP) published a proposed rule prescribing procedures and criteria for determining Currently Unavoidable Uses (CUU) of intentionally added per- and polyfluoroalkyl substances (PFAS) in products subject to Maine’s PFAS in Products law (38 M.R.S. § 1614).
Following the proposed rule’s comment period, DEP published its comment responses, announcing its intention to extend the allowable timeframe for submitting CUU designation requests for products from three years to five years before a product’s applicable sales prohibition. On April 7, 2025, Maine’s Board of Environmental Protection voted to adopt DEP’s revisions to its proposed rule, thereby solidifying this change.
Maine’s amended PFAS in Products law restricts intentionally added PFAS in products through staggered sales and distribution prohibitions according to categorical product type. Under DEP’s now-final implementing rule, CUU requests for products scheduled to be prohibited by the January 1, 2026 deadline (eg, cleaning, cookware, cosmetic, and textile products) are due by June 1, 2025. All other products affected by Maine DEP’s rolling sales prohibitions may be submitted as far in advance as 60 months (five years), and no later than 18 months (one and a half years), before the respective sales prohibition. Notably, the five-year CUU application period for products subject to the PFAS in Product law’s January 1, 2029 prohibitions (eg, artificial turf, outdoor apparel) has already commenced.
The extended CUU application timeframe may be a positive development for industry stakeholders. Applicants can now apply earlier, pursue a faster response from DEP, and have more time to make critical production and supply chain decisions based on CUU availability.
Despite industry efforts to request additional rule changes, DEP only agreed to the CUU timeline adjustment. Notably, DEP refused to exclude fluoropolymers from the law’s reach or otherwise categorically deem their use as a CUU. DEP also rejected requests for a single CUU submission process for products that serve multiple industries, reasoning that PFAS alternative availability and product utility to health, safety, or functioning of society may vary by industry use. Ultimately, DEP’s updated rulemaking likely demonstrates the Agency’s commitment to proceeding with the state’s PFAS in Products law largely as-is.
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