On May 22, 2025, the Minnesota Pollution Control Agency (MPCA) held a public hearing on its “Proposed Permanent Rules Relating to PFAS in Products; Reporting and Fees” (proposed rule). Administrative Law Judge (ALJ) Jim Mortenson facilitated the hearing, which had more than 100 participants in attendance. MPCA has made available online the PowerPoint document used for the hearing presentation, the hearing exhibits, and a transcript of the hearing.
Procedural Background
The pre-hearing public comment period for the proposed rule closed on May 21, 2025. Under Minnesota administrative procedure, comments must be accepted for five days following a hearing on a proposed rule, and the overseeing ALJ may extend the comment period by no more than 20 days. Following the close of comments and a brief rebuttal period, the presiding ALJ will issue a report on the proposed rule within 30 days, unless an extension is granted.
The post-hearing comment period for the proposed rule has been extended until 4:30 p.m. (CDT) on June 23, 2025. A rebuttal period of five business days, lasting from the close of the public comment period until 4:30 p.m. (CDT) on June 30, 2025, will follow. Persons may respond to public comments during this rebuttal period, but they may not submit new comments. Any person who wishes to comment on the rule or provide rebuttal may do so via e-comments, mail, or fax. MPCA will not accept comments submitted via e-mail. Comments must be received by MPCA by the end of the respective periods, so persons planning to submit comments or rebuttals via mail should ensure comments are sent with enough time to reach MPCA by the cutoff.
To allow a proposed rule to move forward, the presiding ALJ must answer in the affirmative the following three questions: (1) Does the agency have legal authority to adopt the rule? (2) Has the agency fulfilled all relevant legal and procedural requirements to promulgate the rules? and (3) Has the agency demonstrated the need and reasonableness of each portion of the proposed rule? ALJ Mortenson will consider the comments provided both during the hearing and in writing as he evaluates the proposed rule following the close of the record. More information on the proposed rule is available in our April 22, 2025, memorandum.
Comments on the Proposed Rule
While the comments provided at the hearing covered a wide range of topics and industry concerns, two topics were the focus of many of the comments. First, commenting parties raised concerns about the statutory deadline for initial reporting of January 1, 2026. Second, commenters questioned whether the proposed due diligence standard, which requires reporting parties to search for information until all required information is known, is attainable. Supply chain and product complexity were cited as factors impacting the regulated community’s ability to meet the reporting deadline and to comply with the due diligence standard. Representatives of the following parties commented during the hearing (with links to written comments, if available):
- The RV Industry Association spoke about the implications of reporting for complex products with potentially thousands of components and international supply chains and stated that the proposed due diligence standard is impractical.
- The Complex Products Manufacturers Coalition (CPMCoalition) discussed the reporting deadline, stating that reporting by January 1, 2026, is infeasible for manufacturers of complex products because the manufacturers are the downstream users of many component parts. The CPMCoalition also commented on the due diligence standard, stating that “until all required information is known” is unachievable and asking MPCA to adopt the U.S. Environmental Protection Agency’s (EPA) “not known or reasonably ascertainable” (NKRA) standard instead.
- The Alliance for Automotive Innovation (Auto Innovators) cited the challenges that component-level reporting places on products with potentially thousands of parts, such as vehicles. Auto Innovators also mentioned the proposed due diligence standard and the reporting timeline and noted that compliance with these would be burdensome to the regulated community.
- Sustainable PFAS Action Network (SPAN) asked that the first reporting deadline be extended to allow affected entities to fulfill the regulatory obligations. SPAN also noted that additional exemptions should be offered for fluoropolymers and that greater confidential business information (CBI) protections should be available.
- The Air-Conditioning, Heating, and Refrigeration Institute (AHRI) reviewed the reporting deadline and noted that six months would not be enough time to fulfill the proposed regulatory obligations. AHRI asked that MPCA release a list of compounds meeting the definition of PFAS under the law and sought clarification on definitions and the scope of the regulations. Finally, AHRI asked that MPCA adopt EPA’s NKRA due diligence standard.
- SEMI and the Semiconductor Industry Association (SIA) brought up the importance of PFAS in the semiconductor industry and noted that there are no viable alternatives for certain PFAS used in critical components of semiconductors.
- The Association of Equipment Manufacturers (AEM) commented that the Toxic Substances Control Act’s (TSCA) Section 8(a)(7) NKRA due diligence standard should be adopted and noted that compliance is not feasible for industrial entities under the proposed due diligence standard and reporting deadline. AEM also noted that testing infrastructure and laboratory capacity to meet the reporting standard, as proposed, may not exist.
- Perlick Corporation commented on the compliance implications with a fast-approaching deadline and primarily discussed issues related to accountability. Perlick noted that manufacturers may sell to distributors, which may then sell to contractors in various locations, and therefore a manufacturer may have no hand in a product entering Minnesota’s market. The corporation stated that requiring manufacturers to track where products end up is a problematic standard.
- Daikin Applied Americas Inc. (DAA) mentioned the complexity of certain heating, ventilation, and air conditioning (HVAC) products and the burden that requiring information about each specific component would place on the manufacturer under the existing reporting deadline. DAA noted that it has about a 40 percent response rate from its top suppliers on information about PFAS in components, which does not include local businesses and smaller suppliers.
- The American Coatings Association (ACA) noted that the existing reporting deadline is not viable. ACA also cited the testing requirements in the proposed rule and stated both that fluorine measurements are not a good approximation for PFAS and that estimates should be allowed, as they are more reliable than testing for certain products.
- Environmental Law and Science PLLC noted that the proposed reporting deadline is not realistic, given how complex many supply chains are.
Sixty-six written comments were filed during the pre-hearing comment period. The majority of these comments echo points raised during the public hearing. In responding to comments, MPCA will need either to justify how the statutory reporting deadline and proposed due diligence standard can be met or issue reporting extensions and modify the due diligence standard in response to comments. MPCA will also likely address questions about scope, testing infrastructure and methodology, language clarifications, applicability of exemptions, and more.
Commentary
Manufacturers and other entities impacted by the proposed rule and upcoming reporting requirements that have not participated in these public comment opportunities should review the submitted comments and determine whether their respective interests and concerns have been adequately addressed. Entities should consider submitting comments about areas of concern or uncertainty, even if other comments have raised similar or identical issues. Reviewing existing comments may help entities better understand the potential legal and business impacts of the proposed rule. Comments are due by June 23, 2025, at 4:30 p.m. (CDT).
Catherina D. Narigon contributed to this article