Legal Alert

Minnesota Publishes PFAS Blueprint to Address Pollution

by Harry Weiss and Erin M. Carter
March 2, 2021


Minnesota’s Pollution Control Agency (MPCA) proposed a PFAS Blueprint, a comprehensive plan to address PFAS (per- and polyfluoroalkyl substances) in Minnesota. The proposal details the short-term and long-term priorities of MPCA to prevent PFAS pollution, advance PFAS research, incorporate PFAS into regulatory programs, and improve the efficiency of cleanups at PFAS-contaminated sites.

The Upshot

  • The Blueprint is one of the most comprehensive statewide efforts to address PFAS, and in some aspects, goes further than the EPA’s PFAS Action Plan.
  • The Blueprint is a planning document, not law. Many, but not all, of the Blueprint’s initiatives would require legislative action to implement.
  • Criticism of efforts like these in Minnesota and other states has centered on the lack of scientific data establishing precise health risks of exposure to PFAS. In response, the Blueprint proposes to address that shortfall through funding and advancing research on risks to human health.
  • Other states may adopt similar approaches in the near future.

The Bottom Line

Over the last four years, states have taken the lead in PFAS regulation and enforcement, while the EPA has been slow to act. Now, between states’ initiatives like the Minnesota PFAS Blueprint and the Biden administration’s increased focus on PFAS, stakeholders should prepare for a significant uptick in PFAS regulatory and potentially enforcement actions in the years to come. PFAS regulations are expected from the EPA, but industry should pay close attention to state actions on PFAS, as they often include stricter environmental standards and are likely to be tailored to the specific industries in the state.

Minnesota’s Pollution Control Agency (MPCA) proposed a PFAS Blueprint on February 10, 2021. The Blueprint is a comprehensive plan and is intended to protect Minnesotans and the environment from PFAS (per- and polyfluoroalkyl substances).

PFAS are highly durable chemicals that have been used for more than 50 years in a variety of applications, including in non-stick cookware and carpet protectant and in the manufacturing of cell phones and other electronic devices. They have important oil-, water-, temperature-, and fire-resistant attributes as well as electrical insulating properties. But they persist in the environment and have been allegedly linked to a number of health concerns.

Blueprint Overview

The Blueprint is essentially MPCA’s wish list for PFAS initiatives in the state. The Blueprint focuses on a few main themes: pollution prevention, investigation of PFAS discharges, regulatory development, environmental monitoring, and toxicity research.

Details on the first three themes follow.

Pollution prevention

Pollution prevention approaches would be advertised to reduce exposure to toxic chemicals and prevent the need for expensive treatment and remediation efforts. Minnesota has already taken some pollution prevention actions that do carry the force of law today: banning the use of PFAS-containing firefighting foams for training and test purposes; removing PFAS-containing products from Minnesota contracts for compostable products; and encouraging the use of fluorine-free firefighting foams. The Blueprint proposes going a step further by (1) requiring PFAS labeling on products; (2) limiting or banning PFAS in food packaging; and (3) implementing public sector purchasing guidelines to end purchases of PFAS-containing products.

Labeling requirements and banning PFAS in food packaging would require legislative measures. State and local purchasing guidelines could be implemented by MPCA’s Sustainable Materials Management Unit and the Department of Administration Office of State Procurement. These pollution prevention initiatives are unique because they affect industries, like state universities, that may not now be focused on environmental regulations as applied to purchasing.

Investigation of PFAS discharges

MPCA and Minnesota Department of Health (MDH) have already established health-based cleanup values for several PFAS in multiple media. Under the Blueprint, MPCA emphasizes its efforts to investigate and remediate sites associated with PFAS releases from metal plating industries and from uses of PFAS-containing firefighting foam. The Blueprint also describes the Pilot PFAS Inventory, which would expand existing databases of known and potential PFAS-contaminated sites and tools to prioritize investigations into those sites. The Pilot PFAS Inventory combines existing monitoring data for PFAS, data on types of industrial activity occurring in Minnesota, and data on geologic susceptibility of aquifers to prioritize sites for PFAS investigation. Thus, past or present textile, paper, and chemical manufacturing facilities may join metal plating and PFAS manufacturing concerns, as sites for priority listing on the PFAS Inventory.

Regulatory development

MDH has implemented health-based guidance values for drinking water for several PFAS: PFOA, PFOS, PFBS, PFHxS, PFBA, PFPeA, and PFHxA. Importantly, these are not enforceable drinking water standards like maximum contaminant levels (MCLs). In fact, according to the Blueprint, MDH is not currently developing drinking water standards for PFAS. Instead, the Blueprint effort proposes to focus upon developing health-based guidance for additional PFAS and expanding monitoring of PFAS in drinking water.

The Blueprint also proposes specifically adding PFAS to the definition of hazardous substances under the Minnesota Environmental Response and Liability Act (MERLA)—Minnesota’s state-level statute utilized to command cleanup of contaminated properties. Minnesota has already taken action to clean-up PFAS contamination under authorities provided by MERLA because PFAS are currently considered hazardous substances based on their properties as hazardous waste under Minn. Stat. 116.06, subd. 11. The Blueprint, however, proposes to specifically designate PFAS as a hazardous substance to clarify MPCA’s authority to respond to releases of PFAS under MERLA while at the same time frustrating legal challenges. This designation would could allow MPCA to recover costs from responsible parties that fail to take all appropriate and necessary actions to investigate or clean-up releases of PFAS as provided in Minn. Stat. 115B.04.

The proposal to use MERLA, however, lacks specificity. Not all PFAS are created equal, and adding all PFAS to the MERLA list of hazardous substances would not and could not in the first instance be based on established risks to human health or the environment. Note, on January 14, 2021, the EPA signed an Advance Notice of Proposed Rulemaking (ANPRM) to determine whether certain PFAS (PFOA and PFOS) should be regulated as hazardous substances under CERCLA (MERLA’s federal counterpart) and hazardous waste under RCRA, but that ANPRM is undergoing review in accordance with the Regulatory Freeze issued on January 20, 2021.

Looking Outside Minnesota

Minnesota has been a hot bed of PFAS-related issues, but it is far from the only state concerned with PFAS. Several states have already promulgated drinking water standards and remediation standards for two types of PFAS (PFOA and PFOS), many of which are stricter than the EPA’s health advisory level of 70 parts per trillion for drinking water. State action, at least until now, has been largely a result of EPA’s inaction. However, the Biden administration has made clear that PFAS is a priority and stakeholders can expect several PFAS actions out of EPA under Administrator Michael Regan’s leadership. For example, the EPA recently re-proposed the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) to collect new data on PFAS in drinking water, and the agency reissued a final regulatory determinations to regulate PFOA acid PFOS under the Safe Drinking Water Act (SDWA).

Copyright © 2021 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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