Minnesota Outlines CUU Criteria Ahead of 2032 PFAS Ban

The Minnesota Pollution Control Agency (MPCA) held a webinar on February 26, 2026, on its currently unavoidable use (CUU) rule concepts. Under Minnesota’s per- and polyfluoroalkyl substances (PFAS) statute, beginning January 1, 2032, intentionally added PFAS in almost all products will be prohibited in Minnesota unless MPCA issues a CUU determination for the use of the PFAS. MPCA has posted a recording of the webinar, presentation slides, and a summary of the draft rule concepts. Comments on the draft rule concepts are due March 29, 2026, at 4:30 p.m. (CDT).

Content for a Request for a CUU Determination

Eligibility

Under the statute, to be eligible for a CUU determination, MPCA must determine that the use is “essential for health, safety, or the functioning of society and for which alternatives are not reasonably available.” MPCA notes in the draft rule concepts that the statute does not define the terms “essential for health, safety, or the functioning of society,” “alternatives,” or “reasonably available.” MPCA seeks feedback on the potential for using the following definitions in the CUU rule:

Essential for health, safety, or the functioning of society: A use of a PFAS in a product or component when the function provided by the PFAS is, at the time of a determination by the commissioner, necessary for the product, component, or spare or replacement component to perform as intended, such that the unavailability of the PFAS for use in the product would cause the product’s service to be unavailable, which would result in:
1. A significant increase in negative health outcomes;
2. An inability to mitigate significant risks to human health or the environment; or
3. A significant disruption of commercial, public, or ecosystem services on which society relies, including:
  1. Provision of food, water, shelter, health, hygiene, or bare necessities for human survival;
  2. Provision of transportation and utilities such as gas, electricity, data, communications, and sewer;
  3. Provision of personal, occupational, or public safety particularly for extreme conditions of use; and
  4. Other services not covered under subitems (1) through (3) that serve the basic needs of human beings.
Alternative: A non-PFAS chemical, substance, material, manufacturing process change, non-chemical change, or other product that, if used in place of a PFAS or PFAS-containing product, would result in a functionally equivalent product.
Reasonably available: “Reasonably available” means that one or more alternatives to a PFAS can perform comparably to the PFAS being considered for replacement in a product or component and is currently available in sufficient quantity. PFAS alternatives that are in use in equivalent products or components are considered “reasonably available.” Conditions of current reasonable availability may change over time as a result of new research or innovation.

Applicant Information

The name of the manufacturer in the application for a CUU should match the name submitted previously for reporting purposes. MPCA would allow an applicant to request a similar CUU determination if one has already been issued for a product in the same product category. MPCA notes that applicants would still have to submit a request that would be subject to notice and comment.

CUU Information

To support the applicant’s request for a CUU determination, the applicant would be required to include a description of how the use of PFAS in the product or product category meets the definition of a CUU. To do this, the applicant would have to describe:

The use of PFAS in the product that meets the definition of “essential for health, safety, or the functioning of society” and explain how the lack of PFAS in that product would disrupt the service it provides;
Reasonably available alternatives to either the product itself or the intentionally added PFAS within the product; and
If applicable, the “extreme conditions of use” that require intentionally added PFAS for the product to provide its service.

According to MPCA, the provision regarding extreme conditions of use “is an opportunity for the applicant to explain why PFAS is needed in their product and what extreme conditions of use the product must withstand.” MPCA requests feedback on the potential for using the following definition for “extreme conditions of use”:

Extreme conditions of use: An environment that results in one or more of the following:
1. High or low operating temperatures, or both;
2. High or low material pH, or both;
3. High corrosivity not covered under item B;
4. Low reactivity with one or multiple chemicals;
5. High or low operating pressures, or both;
6. High tear, crack, or other stress potential;
7. High or the possibility of high friction or vibration;
8. High or sustained humidity or moisture;
9. High or concentrated voltage requiring dielectric strength;
10. Elevated radiation levels;
11. High exposure to oxygen with risk of oxidation or fire; or
12. Others the commissioner may designate.

MPCA states that the applicant would also be required to provide information regarding any safety or other standard that requires the use of PFAS in their product. Applicants would have to include the applicable citation to the standard and describe why a PFAS is needed to meet that requirement. MPCA notes that “[i]t is important to distinguish whether PFAS is actually required to meet that standard, or if the manufacturer is choosing to use PFAS to meet the standard.” MPCA would also ask applicants to assess whether any alternatives could be used to meet the standard instead of the intentionally added PFAS.

Assessment of Alternatives

A CUU application would be required to include an assessment of alternatives for MPCA to consider the application complete. If an assessment is not included, or the applicant states that there are no alternatives without further explanation, MPCA would consider the request incomplete and notify the applicant in writing of this deficiency.

MPCA states that an applicant may use assessment services provided by a qualified third-party provider. MPCA notes that an applicant “must not rely solely on simplicity, convenience, or lower cost of PFAS as justification that there are no reasonably available alternatives. As a reminder, the proposed definition of “reasonably available” is focused on comparable performance and quantity, not cost.”

The assessment of alternatives must include:

Identification of potential alternatives, including any chemical, substance, material, manufacturing process change, non-chemical change, or other product that could be used in place of either the product itself or the intentionally added PFAS in the product;
If the alternative is a chemical, the applicant must include the chemical name and chemical identifying number;
An assessment of how each alternative meets the function that PFAS is meeting that is needed for the product or component to provide its service;
If applicable, the concentration of the alternative that would be needed for the product or component to provide its service;
An assessment of whether each alternative is available in sufficient quantities without regard to cost, and if they are not, a forecast of how availability is expected to change;
An assessment of the cost difference between using PFAS in a product versus using each alternative identified;
An indication of whether an alternative is listed on any regulatory chemical of concern list, including what list it is included on and a description of the chemical traits that make it a concern;
An estimated timeline needed for transition to an alternative; and
Any other information that the applicant believes is relevant to the feasibility of implementing the identified alternatives.

Steps in the CUU Determination Process

Process

MPCA proposes the following process for an applicant to submit a request for a CUU determination and the commissioner to make a determination:

An applicant submits a request for a CUU determination;
MPCA conducts a completeness review of the request;
If the request is incomplete, MPCA will notify the applicant in writing, and the applicant has 30 days to correct any cited deficiencies;
Once the request is complete, MPCA evaluates the request for a CUU determination;
MPCA issues a draft determination and notifies the applicant in writing;
The issuance of a draft determination triggers a 30-day public comment period;
The applicant has 30 days after the public comment period to provide a rebuttal to the comments received; and
MPCA issues a final CUU determination.

Deadline

MPCA notes that it does not have statutory authority to allow “sell through” provisions past January 1, 2032, without a positive CUU determination. If an applicant submits a request for a CUU determination, but the commissioner has not yet issued a final CUU determination before January 1, 2032, according to MPCA, “the applicant will be required to stop selling their product in Minnesota until and unless the commissioner issues a positive CUU determination.” To ensure the commissioner issues a CUU determination prior to January 1, 2032, MPCA proposes to establish a deadline for applicants representing “existing products” to submit a request for a CUU determination. MPCA seeks feedback on a January 1, 2030, deadline for requests for a CUU determination for existing products. MPCA will prioritize review of these requests over requests for a CUU determination for “novel products,” including products that are not yet sold, offered for sale, or distributed for sale in the state as of January 1, 2030. MPCA states that the term “novel products” will also include products for which the applicant misses the January 1, 2030, deadline to request a CUU determination.

Timeline

MPCA notes that important timeline components in the CUU determination process include the 30-day public comment period and 30-day applicant rebuttal period. During the rebuttal period, according to MPCA, “the information that the applicant provides must be relevant to the comments received during the public comment period.” MPCA states that it “will likely use an online comment platform to receive comments during this period to ensure that all comments can be reviewed by anyone following the CUU determination process.”

Duration

The initial positive CUU determination for existing products will expire eight years from the date of issuance. MPCA note that with a January 1, 2030, request deadline, the date of issuance for a CUU determination may pre-date the January 1, 2032, statutory prohibition. Although the CUU determination is not technically needed by the applicant until after the prohibition goes into effect, according to MPCA, this proposal will allow it to “stagger renewal deadlines and ease the administrative burden of processing those future renewals.” The initial positive CUU determination for novel products will expire five years from the date of issuance.

Renewal

After the initial determination, each renewal of a positive CUU determination would expire five years from the expiration of the positive CUU determination. An applicant would have to apply for a renewal of a positive CUU determination at least one year before the expiration of the positive CUU determination. Without a renewal of a positive CUU determination, the product would be subject to the statutory prohibition.

Trade Secrets

MPCA provides potentially eligible data categories that may be considered for trade secret requests that qualify under Minnesota Statutes Section 13.37. The potentially eligible data categories include:

Chemical name;
Chemical identifying number;
Chemical concentration or formula;
Reformulation or redesign of the product, technique, or production process that a manufacturer may need to implement an alternative;
The physical description that would best identify a non-chemical alternative; and
Specific supply chain information.

For any data that are deemed not public by the commissioner, the applicant would have to provide alternative information that will be designated as public data.

Due Diligence

An applicant would be required to maintain records for any request for a CUU determination for at least ten years after the issuance of a positive CUU determination and to provide the records to the commissioner upon request. According to MPCA, these records may include communications, findings, and justifications for the request for a CUU determination and the research of alternatives to PFAS and ongoing assessments. For a group of manufacturers, the applicant would have to maintain record of an agreement that the manufacturers have entered into that states the data submitted on their behalf are accurate and complete.

Schedule

MPCA’s website includes the following schedule for the CUU rulemaking:

March 2026: Feedback period to collect input on proposed rule concepts;
Fall 2026: Second round of check-in group meetings or webinar to discuss proposed rule concepts and solicit feedback;
Winter 2026-27: Second webinar to provide an update on proposed rule concepts;
2027: Incorporate feedback into proposed rule and Statement of Need and Reasonableness; and
To be determined: Publish Notice of Intent to Adopt Proposed Rules in State Register, followed by a public comment period and webinar. According to MPCA, the date of final rule adoption will depend on the public engagement process and administrative steps.

Commentary

MPCA’s approach includes some key differences from Maine’s rulemaking process and final CUU rule. The draft concepts summary includes a list of detailed questions for commenters, including for which types of components, products, or product categories the product manufacturer will request a CUU determination. To date, many manufacturers are understandably reluctant to acknowledge publicly the presence of intentionally added PFAS in their products, although Minnesota will soon force this issue with its fast approaching July 1, 2026, reporting deadline. MPCA’s draft concepts summary provides detail regarding what would be considered a significant disruption of commercial, public, or ecosystem services on which society relies. MPCA also distinguishes between existing products and novel products, explicitly stating that CUU determination requests for existing products will be prioritized.

An interesting provision in the draft concepts summary is the requirement that applicants “explain why PFAS is needed in their product and what extreme conditions of use the product must withstand.” This could be seen as an acknowledgment that there are valid and defensible reasons for intentionally adding PFAS to a product versus continuing to include PFAS because that is how a product has been manufactured to date. For a successful CUU determination application, a manufacturer will need to know the PFAS and its function within the product rather than relying on vague reasons from a supplier.

Maine allows CUU determination applications to be submitted up to 60 months before the January 1, 2032, prohibition deadline, so it is possible that a manufacturer could obtain a CUU determination in Maine before the deadline for applying in Minnesota for products that would otherwise be banned January 1, 2032. For manufacturers waiting until the last moment to apply (January 1, 2030, in Minnesota and 18 months before January 1, 2032, in Maine), they will need to apply in each jurisdiction without knowing what conclusion each state will reach. New Mexico also has a broad January 1, 2032, prohibition. Under the February 2026 version of New Mexico’s proposed rule, a CUU determination would expire after three years, while in Minnesota, a CUU determination for an existing product would expire after five years, lining up with Maine.

MPCA’s draft concepts summary includes a detailed list of questions for commenters. Manufacturers in particular should review questions concerning the administrative cost of requesting a CUU determination; expenditure considerations when seeing non-PFAS alternatives; and research and development (R&D) safety validation cycles. Providing as much detailed information now regarding the hours involved in obtaining data from suppliers for a single product line, the steps involved in implementing a non-PFAS alternative, and how the R&D safety validation cycle lines up with the proposed five-year CUU renewal period will help MPCA draft the best rule possible.

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