SPAN Submits Proposal to Maine DEP: Identifying Currently Unavoidable Uses

On March 1, 2024, the  Sustainable PFAS Action Network (SPAN) submitted a proposal concerning the determinations the Maine Department of Environmental Protection (DEP) will be making to identify currently unavoidable uses of PFAS. “Currently unavoidable uses” (CUUs) refers to a use of PFAS determined to be essential for health, safety, or the functioning of society and for which alternatives are not reasonably available.

While Maine DEP develops its pre-rulemaking concept draft list of currently unavoidable uses for public input, SPAN provided considerations to support the responsible management of PFAS compounds.

Establish Categories and Examples of Currently Unavoidable Uses

In the proposal, SPAN recommended DEP establish categories of currently unavoidable uses and provide examples in the DEP’s May 2024 concept draft list. These categories should include uses previously reviewed and authorized by the federal government through agencies like the Environmental Protection Agency and Food and Drug Administration, as well as uses that are necessary for meeting federal specifications like Department of Defense requirements or Federal Aviation Administration standards.

There are many additional categories of PFAS uses that SPAN recommends should be eligible for CUU determinations because they constitute uses of PFAS which are critical to public health, safety, and the functioning of society and may not have reasonably available alternatives. SPAN recommends a flexible approach be taken by DEP, which will help DEP concentrate its efforts on identifying non-essential consumer products for which the 2030 prohibition might be appropriate. Examples of these categories include health care product packaging; transportation equipment; air conditioning, heating, ventilation, and refrigeration equipment; electric vehicle batteries; renewable energy generation equipment, and semiconductors.

Encourage Innovation and Economic Development

The DEP should also outline a process which provides flexibility and will permit product manufacturers and PFAS-containing product users to request CUU determinations to be made for items not currently contemplated by DEP during its impending rulemaking and to encourage, rather than discourage, innovation and economic development in the regulated community.  

Alternatives Should Be Determined on a Comparative Basis

SPAN also recommended that when determining whether an alternative exists for a PFAS use or a PFAS-containing product, 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.

Granting Select CUU Determinations Based on Conditions

Where appropriate, SPAN recommended DEP consider CUU determinations that include appropriate conditions. For example, exemptions from an outright product 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. Periodic reporting also could be a condition of the currently unavoidable use designation.

Recognize Trade Secrets & Matters of National Security

Last, SPAN advises that DEP enable entities filing CUU determination requests and proposals be able to assert claims of confidentiality for information that is a trade secret or protected for national security reasons.

The full proposal, which provides in-depth comments, is available by clicking here.

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