SPAN Submits Comments on Minnesota’s Planned New Rules: Currently Unavoidable Uses of PFAS
On March 1, 2024, the Sustainable PFAS Action Network (SPAN) submitted comments on the planned new rules that will govern how the Minnesota Pollution Control Agency (MPCA) will consider and make determinations that the presence of PFAS in a product represents a
“currently unavoidable use” – a use of PFAS determined to be essential for health, safety, or the functioning of society and for which alternatives are not reasonably available.
SPAN considers these determinations critical, as they will determine which products may be banned from distribution in Minnesota starting on January 1, 2032.
In response to MPCA’s request, SPAN submitted specific comments to help ensure the approach taken by MPCA for considering and granting unavoidable use determination is timely, transparent, and has clearly established criteria which are applied fairly.
The responses to MPCA’s questions below are abbreviated. The full comment letter, which includes further explanation for these recommendations, is available by clicking here.
Should criteria be defined for “essential for health, safety, or the functioning of society”? If so, what should those criteria be?
SPAN recommends MPCA provide criteria, definitions, examples, as well as narrative guidance to the regulated community that will further clarify how the Agency will interpret the statutory definition of "currently unavoidable use"…
Should costs of PFAS alternatives be considered in the definition of “reasonably available”? What is a “reasonable” cost threshold?
Yes. The standards for available alternatives should consider both the technical and economic feasibility of alternatives…
Should unique considerations be made for small businesses with regards to economic feasibility?
Yes. Economic feasibility should be a consideration in addition to technical feasibility – such as meeting performance characteristics. Special consideration for small businesses might include longer periods for prohibitions to take effect for small businesses.
What criteria should be used to determine the safety of potential PFAS alternatives?
The safety of PFAS alternatives should be determined on a comparative basis by taking into consideration the entire lifecycle of the current (PFAS-containing) product in contrast to the “alternative” under consideration. …Furthermore, the “safety” determination might need to involve a “comparative-risk” determination including whether an alternative may be available and should be considered for use which may contain PFAS, but a variety of PFAS for which there are fewer health or environmental concerns; in which case, its use as a phased-in alternative should be considered and encouraged over time.
How long should PFAS currently unavoidable use determinations be good for? How should the length of the currently unavoidable use determination be decided? Should significant changes in available information about alternatives trigger a re-evaluation?
SPAN recommends MPCA have the authority to issue CUU determinations with appropriate conditions. For example, exemptions from a prohibition might be granted subject to an appropriate time limitation…, and/or to be contingent on commitments from the product producer to minimize human exposures and environmental releases of PFAS to retain a currently unavoidable use designation. …
How should stakeholders request to have a PFAS use be considered for currently unavoidable use determination by the MPCA? Conversely, could stakeholders request a PFAS use not be determined to be currently unavoidable? What information should be submitted in support of such requests?
The process MPCA establishes by which businesses may seek CUU determinations should, at a minimum, enable members of the regulated community to request a “currently unavoidable use” classification for one or more products and to provide information sufficient to support a finding by MPCA that there was a basis for MPCA to conclude the product met the criteria to be established for a CUU. If such determinations are to be made through a public rulemaking process, SPAN advocates that the process be open to the proponents and opponents of an unavoidable use determination.
Should MPCA make some initial currently unavoidable use determinations as part of this rulemaking using the proposed criteria?
Yes… SPAN advocates that there are certain basic categories of use that should be considered to be unavoidable, and for which exemptions need not be sought by individual company-specific applicants. This will streamline the process for entities to seek such determinations for unique products and allow MPCA to focus on PFAS of high concern in non-essential uses which we believe is MPCA’s ultimate intent with this rulemaking.
In addition to the specific responses requested by MPCA, SPAN encouraged the Agency to establish a framework for implementing its “currently unavoidable use” determination program. SPAN continues to recommend that a risk-based evaluation process be structured and applied when identifying products for potential prohibitions — and SPAN continues to encourage MPCA to prepare and establish clear and practical reporting obligations for PFAS-containing consumer products.
###