Minnesota is implementing prohibitions and reporting requirements for PFAS compounds, often referred to as “forever chemicals.” Most of these regulations and environmental legislation will take effect in stages between January 1, 2025 and January 1, 2032. The goal is to phase out and prohibit sales of products containing intentionally added PFAS in Minnesota, with the exception of those determined to involve unavoidable uses of PFAS. The broad reach of this legislation means that it will likely apply to any business that has manufactured PFAS, any business that uses or has used PFAS in some way (from manufacturing and operation to protection or packaging), any business that has been involved in the collection or disposal of waste containing PFAS, and so on. This new legal structure is aimed at protecting public health and the environment in Minnesota, and it will impact a variety of manufacturing and business processes.
What are PFAS Compounds?
PFAS, perfluoroalkyl and polyfluoroalkyl substances, are a family of nearly 5,000 chemicals now pervasive in the environment. PFAS chemical bonds are strong and do not break down over time. Some of these are toxic to humans and animals.
PFAS chemicals were invented in the 1940s, and they have been used in numerous products to repel oil, water, heat, and stains. PFAS are commonly found in cleaning products, water-resistant fabrics (e.g., rain jackets), nonstick cookware, shampoo, makeup, nail polish, carpets, upholstery, dental floss, firefighting foam, and more.
PFAS do not break down in the environment or in the human body. As such, PFAS have been shown to “bioaccumulate” in humans and other organisms. Bioaccumulation describes the process of accumulation or buildup of a contaminant in a living organism over time, and it is estimated that some level of PFAS can now be found in the blood of nearly all people. Research is in its relative infancy with regard to PFAS and their potential health effects, and only a small number of these chemicals have been analyzed. However, they have already been linked to low fertility, birth defects, suppression of the immune system, thyroid disease, and various cancers.
PFAS Contamination
PFAS are found in a variety of places, including air emissions from industrial facilities, wastewater from industrial and municipal sources, soil and water surrounding firefighting training sites, groundwater surrounding landfills, and sometimes areas with no obvious source. PFAS contamination was first measured in the eastern Twin Cities in the early 2000s. In 2005, state health officials announced that PFAS chemicals had contaminated Oakdale’s water, and efforts began to treat the contaminated water. Since then, PFAS chemicals have been detected in water, sediment, soil, and fish in numerous areas in Minnesota. And PFAS contamination is a broad-reaching problem. As of February 2024, estimates from the U.S. Environmental Protection Agency (EPA) suggest that PFAS contamination is present in thousands of communities across all 50 states.
PFAS Legislation in Minnesota
Minnesota has enacted a number of new laws aimed at addressing PFAS contamination. Some of these laws are the first of their kind, and Minnesota’s PFAS policy has been ranked among the broadest in the country so far. Most of these new Minnesota laws are part of a collection of legislation referred to as Amara’s Law, which has the ultimate goal of ending the use of avoidable PFAS in Minnesota by 2032. This legislation is named for Amara Strande. Amara grew up near the Maplewood headquarters of 3M, and she passed away at the age of 20 after battling a rare form of liver cancer. Amara spent her final months advocating for this legislation aimed at reducing and preventing PFAS contamination.
The Minnesota Pollution Control Agency (MPCA) will have primary enforcement authorities under Minn. Stat. §§ 115.071 and 116.072. The MPCA may coordinate with the departments of agriculture, commerce, and health within its discretion. Implementation of Amara’s Law will be largely determined through an ongoing rulemaking process which includes opportunities for public comment. Please click here to learn more about the rulemaking process and to check the current status and/or submit a public comment. The MPCA has indicated that the rulemaking process allows for active participation by residents, community organizations, and industry to ensure the law protects human health and the environment while providing the private sector with the clarity needed to operate businesses within the law.
Another new Minnesota law assigns the state’s Department of Agriculture (MDA) to implement a similar program specific to PFAS intentionally added to pesticides, fertilizers, soil amendments, plant amendments, agricultural liming materials, or similar materials. The MDA and MPCA will work in partnership to promulgate new rules and implement Amara’s Law over time.
PFAS Reporting and Prohibition Timeline
At this time, Minnesota has created a “Blueprint” for addressing PFAS, and the MPCA has established a timeline for implementing changes regarding PFAS. Before working through the timeline, though, it is essential to understand some of the key legal distinctions involved in the PFAS analysis. Again, the overall goal of this Minnesota legislation is to prohibit the use of PFAS in Minnesota, except for those determined to involve currently unavoidable uses.
Currently Unavoidable Uses
The MPCA will determine what can qualify as “currently unavoidable uses.” It will consider whether a product is essential for health, safety, or the functioning of society, and it will consider whether alternatives are not reasonably available. The MPCA will utilize its rulemaking process to create a procedure for determining which currently unavoidable uses are allowed. This will be an ongoing and evolving analysis. The MDA will make currently unavoidable use determinations for pesticides, fertilizers, soil and plant amendments, and agricultural liming products.
Intentionally Added
“Intentionally added” means PFAS deliberately added during the manufacturing of a product to perform a specific function. The MPCA uses a rain jacket as an example. If PFAS are applied to a rain jacket to give it water-resistant properties, the PFAS will meet the definition of intentionally added. However, the MPA states that “If very small amounts of PFAS are found in the rain jacket due the manufacturing process and the rain jacket is water-resistant due to the use of other substances, that PFAS may not be intentionally added.” As such, there will be room for interpretation regarding whether PFAS have been intentionally added. As a part of its enforcement and rulemaking process, the MPCA will establish a procedure for determining whether PFAS has been intentionally added.
PFAS Timeline
The MPCA’s website lists the following timeline, which outlines Minnesota’s plan for PFAS leading up to the ban in 2032 as described below:
- July 1, 2020
- Firefighting Foam (for testing or training)
- Intentionally added PFAS in firefighting foam cannot be used for testing or training purposes, except under certain conditions.
- Firefighting Foam (for testing or training)
- January 1, 2024
- Firefighting Foam
- Intentionally added PFAS in firefighting foam is prohibited for testing, training, and incident response, with limited exceptions which expire within a few years. The law makes no exceptions for individuals or state or municipal fire departments. (Minn. Stat. § 325F.072)
- Food packaging
- Food packaging includes any container that is used to market, protect, handle, deliver, serve, contain, or store a food or beverage.
- The law applies to any layer of packaging, from the unit package to the shipping container.
- The law applies to everything in the packaging itself, from the inks used on food and beverage containers to the interior or exterior blocking, bracing, cushioning, weatherproofing, tape, shrink wrap, or strapping used to protect the containers during shipping.
- Intentionally added PFAS in food packaging is now prohibited. (Minn. Stat. § 325F.075)
- Firefighting Foam
- January 1, 2025
- PFAS in 11 Categories of Products
- Intentionally added PFAS will be prohibited in 11 categories of products. (Minn. Stat. § 116.943, Subd. 5)
- Carpets or Rugs
- Cleaning Products
- Cookware
- Cosmetics
- Dental Floss
- Fabric Treatments
- Juvenile Products
- Menstruation Products
- Textile Furnishings
- Ski Wax
- Upholstered Furniture
- These categories are defined broadly. For example, the MPCA describes “juvenile products” as “(a)ny products containing intentionally added PFAS that are designed or marketed for use by infants and children under 12 years of age, excluding children’s electronic products or an adult mattress, are included in the juvenile products definition and will be prohibited from sale and distribution in 2025. Juvenile products are not limited to those listed in the definition.”
- The MPCA may prohibit additional products if the products contain intentionally added PFAS and are likely to harm Minnesota’s environment and natural resources. As discussed above with food products, this prohibition can also apply to certain types or elements of packaging.
- Intentionally added PFAS will be prohibited in 11 categories of products. (Minn. Stat. § 116.943, Subd. 5)
- PFAS in 11 Categories of Products
- January 1, 2026
- Reporting Requirements
- Any manufacturer selling or distributing products that contain intentionally added PFAS in Minnesota must report certain information about the PFAS, including amount and description, and their purposes. (Minn. Stat. § 116.943, Subd. 2)
- Pesticide and soil amendment products will be reported to the MDA.
- All other products will be reported to the MPCA.
- Any manufacturer selling or distributing products that contain intentionally added PFAS in Minnesota must report certain information about the PFAS, including amount and description, and their purposes. (Minn. Stat. § 116.943, Subd. 2)
- Reporting Requirements
- January 1, 2032
- Currently Avoidable Use Prohibited
- All products that contain intentionally added PFAS, including pesticides and soil amendments, will be prohibited. The primary exception exists in situations when the use of the PFAS in the product is determined to be a currently unavoidable use. (Minn. Stat. § 116.943, Subd. 5c)
- Some medical products, including prosthetic devices and any medical devices, drugs, or products regulated by the U.S. Food and Drug Administration for use in medical applications, are exempted from the 2032 prohibitions. However, those products must be reported if they contain intentionally added PFAS starting in 2026. (Minn. Stat. § 116.943, Subd. 8)
- All products that contain intentionally added PFAS, including pesticides and soil amendments, will be prohibited. The primary exception exists in situations when the use of the PFAS in the product is determined to be a currently unavoidable use. (Minn. Stat. § 116.943, Subd. 5c)
- Currently Avoidable Use Prohibited
EPA Regulations
The EPA is also starting to issue regulations regarding PFAS. In April 2024, the EPA finalized a rule to designate widely used PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This regulation is meant to improve transparency and accountability in an effort to clean up PFAS contamination in communities. In addition to the final rule, the EPA issued a separate CERCLA enforcement discretion policy that makes clear that EPA will focus enforcement on parties who significantly contributed to the release of PFAS chemicals into the environment. Pursuant to CERCLA, the government and some third-parties can now pursue claims related to those PFAS defined as hazardous substances.
The EPA has also issued a final National Primary Drinking Water Regulation (NPDWR) for certain PFAS. The EPA expects that “over many years,” the final rule will prevent PFAS exposure in drinking water for approximately 100 million people, prevent thousands of deaths, and reduce tens of thousands of serious PFAS-attributable illnesses.
In addition, the EPA has issued updated guidance on destruction and disposal of PFAS, added changes to the federal government’s custodial contracts, proposed methods for measuring PFAS in the environment, and more. Click here to learn more about the EPA’s actions aimed at PFAS.
Current Considerations for Manufacturers and Other Businesses
There is a long road ahead with PFAS, but Minnesota, the EPA, and other states and agencies are beginning to move quickly on this issue. Manufacturers and businesses will need to be ready to adapt and modify their processes and formulations. Any entity that currently uses PFAS in any part of its operations, from manufacturing, to packaging and shipping, to waste collection and disposal, need to immediately consider alternatives to be ready to comply with the removal and reporting requirements coming in the near future (January 2025 and 2026 in Minnesota). There will be a heavy burden on businesses that are pure distributors as they will be responsible for knowing the content of the products they distribute and making sure those products are PFAS free within the regulatory guidelines.
Entities need to analyze where PFAS may be involved with their process and start identifying alternatives. For example, what products/components are you sourcing from suppliers? Do they include PFAS? Each component in a product, its packaging, etc. needs to be considered. Entities also need to evaluate what their past practices have been, the products they made, and all of their waste and disposal practices, especially if there are sites that will need cleanup efforts. This is all just the beginning, and there will be continued changes to other areas as well, such as licensing, permits, cleanup standards, environmental surveys, and more.
Industry is at the beginning of a major shift with regard to PFAS. Our attorneys at FMJ are here to help organizations audit and evaluate their PFAS usage, identify viable strategies and processes going forward, and move toward compliance with the new PFAS laws and regulations that are beginning to emerge. In particular, Minnesota companies need to be ready for the new laws and reporting requirements that take effect on January 1, 2025 and January 1, 2026. Please reach out to Jim Seifert, Kristina Keppeler, Rob Tunheim or any other members of our Corporate and Manufacturing Teams to get started.
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