ALJ Disapproves Minnesota's Proposed PFAS Rule Package Pending Correction

As reported in our May 29, 2025, memorandum, on May 22, 2025, the Minnesota Pollution Control Agency (MPCA) held a public hearing on its proposed per- and polyfluoroalkyl substances (PFAS) reporting rule. Administrative Law Judge (ALJ) Jim Mortenson facilitated the hearing. To allow the proposed rule to move forward, the ALJ must conclude that MPCA has the legal authority to adopt the rule; that MPCA has fulfilled all relevant legal and procedural requirements to promulgate the rules; and that MPCA demonstrated the need and reasonableness of each portion of the proposed rule. ALJ Mortenson considered the comments provided both during the hearing and in writing as he evaluated the proposed rule. His August 28, 2025, report on the proposed rule concludes that:

• The proposed rule package must be disapproved for a procedural reason: MPCA failed to include an assessment of the cumulative effect of the proposed rules with federal regulations on PFAS reporting. According to the ALJ report, MPCA did not assess the cumulative effect of the reporting rule, stating that "because Minnesota's PFAS reporting requirement is the only one of its kind, '[t]here will be no significant burden to report this information to the state.'" The ALJ notes that the Toxic Substances Control Act (TSCA) and its regulations require businesses to report certain data about PFAS. The report states that "[i]t is not reasonable to conclude, without a more thorough assessment by the Agency, what effect Minnesota's PFAS reporting requirements will have on businesses in relation to the federal reporting requirements. This is an analysis which must be conducted by the Agency, not the Judge, and the rules cannot be approved without it."

Based on a careful examination of the law, MPCA's explanations, and public comments, the ALJ finds several provisions of the proposed rules that must be disapproved because they are either not rationally related to MPCA's objective or the record does not demonstrate the need or reasonableness of the rule; exceeds, conflicts with, or does not comply with the enabling statute; and is not a rule or is otherwise not an enforceable law. These critical deficiencies are found at:

• 7026.0010, subp. 14 (definition of manufacturer): The report notes that the statute defines manufacturer as "the person that creates or produces a product or whose brand name is affixed to the product. In the case of a product imported into the United States, manufacturer includes the importer or first domestic distributor of the product if the person that manufactured or assembled the product or whose brand name is affixed to the product does not have a presence in the United States." MPCA's proposed rule would define manufacturer as "the person that creates or produces a product, that has a product created or produced, or whose brand name is legally affixed to the product. In the case of a product that is imported into the United States when the person that created or produced the product or whose brand name is affixed to the product does not have a presence in the United States, manufacturer means either the importer or [the] first domestic distributor of the product, whichever is first to sell, offer for sale, or distribute for sale the product in the state." The report states that although MPCA intends to ensure that companies that do not manufacture their own products are subject to the rule, the statute is clear that a manufacturer "includes someone 'whose brand name is affixed to the product,' even though they did not create or produce the product," and the statutory language is not ambiguous.

• 7026.0040 (reporting updates): The report states that while the statute authorizes the reporting of changes to PFAS in products and requiring a fee when reporting, "the provisions concerning recertification and voluntary updates are in violation of rule-making standards" and must be disapproved.

• 7026.0050 (waivers): The proposed rule fails to address how statutory waivers for agricultural products will be obtained. The report notes that the statute does not exempt specified agricultural products from the reporting requirement but instead allows manufacturers to report to the Minnesota Department of Agriculture (MDA) rather than MPCA. MPCA does not address how it will be alerted to the availability of reports made to MDA. The report also states that this section must be disapproved because MPCA grants itself authority the statute does not "by stating that not only does the information to be waived need to be publicly available, but that '[g]aining access to the information must not impose an undue burden [on the Agency] in terms of resources for collection.'" MPCA then gives itself "unreasonably broad authority to determine what constitutes an 'undue burden.'" According to the report, "[t]he rule would be passable if it simply required manufacturers to point [MPCA] to where the information concerned is publicly available."

• 7026.0090 (reporting exemptions): The proposed rule includes an exemption for products reporting to MDA as meeting the reporting waiver requirements. According to the ALJ report, this is misleading, because the statute requires that this information be reported to MDA, while the proposed rule "gives manufacturers the impression that no reporting regarding PFAS is required."

• 7026.0100 (fees): According to the report, MPCA estimates spending $6.027 million to implement Amara's Law over nine years, beginning in fiscal year 2024. The ALJ agrees that the proposed fees ($1,000 per reporter and 5,000-10,000 reporters) will be sufficient to cover the initial and continuing implementation of the program. The report states that MPCA's numbers, "conservatively extrapolated by multiplying the initial reporting fee income (5,000 to 10,000 x $1,000) and the subsequent seven years of income (5,000 to 10,000 x $500 x 7) show the Agency will generate between $22,500,000 and $45,000,000 in reporting and updating fees. This far exceeds the agency's reasonable costs of $6.027 million over the same time period." As a result, the provision must be disapproved.

The ALJ offers recommendations for correcting these deficiencies and suggestions for additional improvements to the proposed rules for the MPCA Commissioner to consider. The revisions to the proposed rule are minor, while assessing the cumulative effect of the proposed rule with the TSCA Section 8(a)(7) PFAS reporting regulations will be more time consuming. Under Minnesota's regulatory process, MPCA must submit a revised rule to the Chief ALJ for approval or request that the Chief ALJ reconsider the disapproval before it can move forward with the final rule.