Minnesota Pollution Control Agency Previews Its PFAS “Currently Unavoidable Use” Rules, Starts Public Comment Period

The Minnesota Pollution Control Agency (MPCA) has revealed its long-awaited draft plans for how products with intentionally added per- or polyfluoroalkyl substances (PFAS) may continue to be sold, distributed or offered for sale in Minnesota after January 1, 2032. Beginning on that date, all products with intentionally added PFAS will be banned from sale or distribution in Minnesota unless the PFAS in the product constitutes a “currently unavoidable use” (CUU). MPCA outlined its draft concepts regarding CUU requests and determinations in a webinar on February 26, 2026, which also kicked off a 30-day public comment period on those concepts. MPCA will then issue draft CUU rules sometime next year.

Background

“Amara’s Law,” the 2023 Minnesota law codified in Minn. Stat. § 116.943, requires a staged banning of the sale, offer for sale or distribution for sale of all products with intentionally added PFAS within Minnesota. Eleven product categories have been subject to this ban since January 1, 2025. See Minnesota Set To Implement Nation’s Most Extensive PFAS Product Ban. Beginning January 1, 2032, no product with intentionally added PFAS may be sold, offered for sale or distributed for sale within Minnesota unless the MPCA Commissioner has determined by rule that the use of PFAS in the product is a CUU. The statute empowers the Commissioner to promulgate rules regarding CUUs. The CUU exemption will not be available to products already subject to the January 1, 2025, ban, however.

MPCA’s CUU Proposal

MPCA, in its February 26, 2026, webinar, unveiled its concepts for the contents of CUU requests and its process for considering those requests. Among the concepts MPCA proposed are the following:

CUU Request Content

• Eligibility: CUUs must meet the statutory definition at Minn. Stat. § 116.943, subd. 1(j), i.e., “a use of PFAS that the commissioner has determined by rule under this section to be essential for health, safety or the functioning of society and for which alternatives are not reasonably available.” In support of that requirement, MPCA is proposing definitions of three key terms: “essential for health, safety or the functioning of society,” “alternative” and “reasonably available.”
• Applicants: CUU determinations will only apply to manufacturers listed on the application; they will not apply to others who make the same or similar products.
• Product Information: Much of the information for currently “existing products” will be taken from the annual reports manufacturers will be required to file beginning July 1, 2026. Products sold after the deadline to submit a CUU determination request (novel products) must submit the same information as existing products along with their CUU requests. Finally, MPCA is proposing a new definition of “product category” specific to CUU requests.
• CUU Information: Applications must contain information explaining the criticality of the PFAS to the service provided by the product. This includes, if applicable, a description of the “extreme conditions of use” that require intentionally added PFAS for the product to provide its service. The application also must indicate if safety or other standards require the use of the PFAS in a given product (as opposed to the PFAS’s use merely helping meet a standard).
• Assessment of Alternatives: Applications must include a full assessment of the existence of alternatives that meet the new definition of “reasonably available.” Simplicity, convenience or lower costs will not be accepted as justification for why there are no reasonably available alternatives.
• Additional information: Applicants must indicate if another jurisdiction anywhere in the world has approved or denied a CUU request for, or has placed sale or use restrictions on, the product in question. They must also certify the accuracy and completeness of their applications.

CUU Determination Process

• Process: MPCA will conduct a “completeness review” of each submitted application. An applicant will have 30 days to correct any identified deficiencies. Once the application is complete, MPCA will make a draft determination, which will then be subject to a 30-day public comment period. Applicants will then have a 30-day rebuttal period before MPCA makes a final determination.
• Proposed Deadline: Requests for CUU determinations for existing products must be submitted by January 1, 2030.
• Duration: Initial positive determinations for existing products will be good for eight years from issuance (which may pre-date the January 1, 2032, ban). Determinations for novel products will only be good for five years.
• Renewal: Renewals for either type of product will only be good for five years. Applicants must file renewal applications at least one year before expiration of the existing determination/renewal.
• Trade Secrets: Applicants will be able to request non-public classification of application information pursuant to the state’s Government Data Practices Act. MPCA is proposing a preliminary list of potentially eligible data categories that may constitute “trade secrets” under the Act.
• Due Diligence: Applicants must maintain application information for 10 years following a positive CUU determination.

Public Comments and Next Steps

The public may now submit comments on MPCA’s CUU concepts until 4:30 p.m. CST on March 29, 2026. A document summarizing the information from the webinar (Draft Rule Concept Summary) is also available at that site.

While it welcomes comments on any aspect of its proposal, MPCA seeks comment on specific topics including:

• Economic considerations, such as the administrative cost of requesting a CUU determination, the cost of seeking non-PFAS alternatives and the societal costs of continued PFAS use.
• Safety or other standards (with specific citations) that require PFAS use in a product.
• Alternative recommendations for data that should or should not be eligible for “trade secret” classification.

The Precursor: Maine’s CUU Exemptions

Minnesota is not the first state to create CUU exemptions as part of its efforts to limit products with intentionally added PFAS within its borders. That distinction goes to Maine. Last year, the Maine Board of Environmental Protection, following the recommendation of the Department of Environmental Protection (DEP), approved only two of 11 applications for CUU designation, both of which involved cleaning product components. Based on this, DEP staff have indicated in their annual report to the Maine Legislature in January that it intends to update its guidance to clarify its expectations for those who may file CUU designation applications later this year.

Maine was also the first state to require manufacturers who sell, etc., products with intentionally added PFAS into the state to report information about those products and their PFAS content to the DEP. The state initially delayed that requirement, then abandoned it altogether. Minnesota, meanwhile, is currently in the process of bringing its own reporting platform online, after also delaying its original statutory reporting deadline. See Minnesota Pollution Control Agency Issues Final PFAS Reporting and Fees Regulations, MPCA Extends PFAS Product Reporting Deadline by Six Months and MPCA’s “Reporting PFAS in products“ webpage.

Industry representatives testified before the Minnesota House Environment and Natural Resources Finance and Policy Committee on February 19, 2026, regarding the myriad issues they encountered in trying to use MPCA’s PFAS Product Reporting Information System for Manufacturers (PRISM) platform to report product information before the July 1^st deadline. MPCA representatives at that same meeting announced MPCA would be releasing a new version of PRISM (Version 1.1) by the end of February that it hoped would address at least some of the identified concerns.

Fredrikson’s Environmental team will continue to monitor and report on developments related to the new PFAS requirements and myriad other new environmental regulations forthcoming from MPCA. Please contact us if we may assist you in navigating this new regulatory environment or with any of your environmental law needs.