Minnesota Seeks Comment on PFAS in Products Law


The state of Minnesota is seeking comment on rulemaking to implement one of the country’s two broadest per- and polyfluoroalkyl substances (PFAS) in product laws. The Minnesota Pollution Control Agency (MPCA) is beginning to draft rules to implement the law’s pending reporting and fee obligations. A draft of the rules is not available, but MPCA seeks comment, between now and November 28, 2023, on issues it should consider. MPCA plans to issue a draft of the rules for public comment in 2024 or 2025 and finalize the rules by January 1, 2026.

Background

Earlier this year, Minnesota became the second state (after Maine) to enact broad reporting requirements regarding the presence of PFAS in all products unless an exemption applies. Reports will be due January 1, 2026. Reports must include:

The law also authorized the MPCA to require manufacturers subject to the reporting requirement to pay a fee to cover the agency’s costs to implement the law.

The law also will restrict the use of PFAS in enumerated product categories as of January 1, 2025. Starting January 1, 2032, the sale or distribution of any new product containing intentionally added PFAS will be prohibited unless the MPCA has determined by rule that the use of PFAS in the product is a currently unavoidable use.

Topics on Which the MPCA Seeks Comment

MPCA is developing two separate rules to implement the law’s reporting and fee obligations. MPCA has stated that it seeks comment in particular on the following topics.

Reporting Rule

Fees Rule

Analysis

Since the Minnesota law defines PFAS very broadly, many industries will likely be affected by the rulemaking. Compliance costs will be very high. For example, when the U.S. Environmental Protection Agency first proposed its PFAS reporting rule under the Toxic Substances Control Act, EPA estimated industry compliance costs of approximately $10.8 million. EPA later revised the estimate to over $875 million, an 80-fold increase. Since the Minnesota reporting requirement is broader even than what EPA proposed (e.g., it will cover products manufactured domestically in addition to imported products), compliance costs for the Minnesota law could be even higher.


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National Law Review, Volumess XIII, Number 269