February 2024

Minnesota is seeking public comment on the development of new rules to implement recent state legislation prohibiting offers to sell, the sale, and/or distribution of any product or product component containing any intentionally added per- and polyfluoroalkyl substances (PFAS)in the state of Minnesota, regardless of whether the product is intended for industrial, commercial, or consumer use. The law (Minnesota Session Law – 2023, Chapter 60, Article 3, Section 21, codified as Minn. Stat. § 116.943, and referred to as “Amara’s Law”) casts a wide regulation net and falls in line with Minnesota’s history of regulations addressing intentionally added PFAS in products. The law includes a provision that allows for the use of PFAS in such products, if the use is currently unavoidable, and the Minnesota Pollution Control Agency’s (MPCA) current public comment period is seeking input on what uses of intentionally added PFAS will qualify as “currently unavoidable uses.”

With the publication of two new proposed rules on February 8, 2024, EPA has taken the first step under its PFAS Strategic Roadmap to bring PFAS compounds under the umbrella of the Resource Conservation and Recovery Act (“RCRA”).  These proposals are designed to accomplish both short- and long-term objectives.  In the short-term, EPA’s proposals will make PFAS compounds subject to corrective action authorities at RCRA hazardous waste facilities.  This means that if a release occurs at such facilities, the owner or operator must investigate whether the contamination includes PFAS and, if so, remediate the contamination along with other hazardous constituents. In the long term, EPA’s proposals set the stage to list nine PFAS compounds as RCRA hazardous wastes.