SPAN Provides Industry Feedback to Minnesota Pollution Control Agency Questions Concerning PFAS Reporting and Fees

Today, the Sustainable PFAS Action Network (SPAN) submitted responses to questions recently posed by the Minnesota Pollution Control Agency (MPCA) related to the agency’s efforts to develop proposed reporting rules implementing the state’s PFAS-in-products law.   

MPCA’s solicitation to the regulated community comes after SPAN participated in a stakeholder meeting hosted by the Minnesota Pollution Control Agency (MPCA) on April 25, 2024 to discuss the development of the reporting rules.

SPAN’s responses to MPCA’s questions below are abbreviated. The full letter, which includes further explanation, is available by clicking here.

Q: Are there further thoughts on how to estimate the number of reporters responding, and the average number of products or components they will report on (if reporting by SKU or UPC)?

1. MCPA should issue rules now identifying “currently unavoidable uses” of PFAS, and clarify that reporting is not required for products that represent or include PFAS in currently unavoidable uses. For purposes of continuity among states for which reporting of PFAS containing products is required, SPAN strongly recommends MPCA adopt a regulation that would implement the same “currently unavoidable use” determinations that were made implicit and explicit by the legislature and signed by the Governor of Maine (available here).

2. MPCA should clarify the definition of “Intentionally added” PFAS to specify that the definition does not include PFAS which are manufacturing byproducts, degradants, or impurities that might be unintentionally present in a product in commerce.

3. MPCA should use its discretion to narrow the scope of “products” for which reporting is required to those products made available to consumers for their personal or household use.  This would exclude the unnecessarily broad and vague categories of products intended for “commercial, or industrial use” or “for use in making other products”. These additional categories unintentionally expand the scope of products on which reporting will be required.

4. Regulatory clarity and consistence also can be achieved if MPCA seeks to align its regulatory definition of “PFAS” (which currently is the overly-inclusive “single fully-fluorinated carbon atom” definition) with the EPA’s more targeted definition in the TSCA 8(a)(7) reporting rule that relies on the presence of at least two fluorinated carbons. This definition includes significantly fewer substances than the “one fully fluorinated carbon” definition.

Q: How do we manage reporting on products which have multiple versions (size, color, etc.) of the same basic product?

SPAN recommends that MPCA clarify in its final reporting rules that a company that distributes in the state products that are similar in terms of physical structure, function, and PFAS containing components (and vary only on the basis of size or color), may report these products together in the same report.

Q:  Would any of you have products containing PFAS that has no assigned CASRN? Would we need an alternative chemical identifier?

In certain situations, SPAN member companies may be completely unaware of the precise identities (and/or CAS Registry Numbers) of specific PFAS that might be present in a formulation or a finished product or product component. MPCA should permit reporting by use of a “generic name” chemical name when the specific chemical identity and/or CAS RN is not known to the company reporting. This is why SPAN also advocates MCPA adopt a “reasonably ascertainable” due diligence standard for manufacturers who are attempting to fulfill their reporting obligations, and that MPCA make clear that manufacturers may reasonably rely on information provided by their suppliers if the reporting party can document that proper inquiries were made.

Q: Would reporting PFAS subgroups be too revealing for trade secrets?

 MPCA’s April presentation implies that claims of confidentiality by reporting manufactures must be first approved by MPCA. SPAN members disagree with that approach and recommend that reporting entities be permitted to determine the scope and breadth of what they consider to be “commercially sensitive” or “trade secret” or “confidential business” information, and that information reported which is designated by the submitter as confidential should be treated as such by MPCA. The final reporting regulations should encourage information submitters, when preparing reports for products that have confidential chemical content, to provide a generic description of the PFAS content of a product or component (based on MPCA guidance to be published) which could be used in public-facing versions of the report submitted. Various PFAS subclasses and groups, such as those considered in MPCA’s April presentation (e.g., fluoropolymers, side-chain fluorinated polymers, polymeric perfluoropolymers, perfluoroalkyl substances), are not likely to reveal commercially sensitive chemical identity information in most cases.

Q: How well do the revised manufacturer definition plus the possible additional hierarchy communicate responsibility for reporting?

SPAN supports MPCA establishing (after seeking public comment on a proposed draft) a reporting obligation “hierarchy” that is more robust than the one provided in the April 25, 2024 public meeting. Such a hierarchy, when provided, also should address how entities which appear in the hierarchy are expected to resolve among themselves who should report and what entity(ies) will be considered by MPCA to be responsible if a report is not timely filed or is not complete or accurate. MPCA should solicit from the regulated community examples and scenarios where there may be a need for MPCA’s guidance on who bears responsibility for submitting a report in complicated supply chain situations. 

Q: What is a reasonable amount of time for reporters to know whether information from supply chains is forthcoming? (At which point a reporting company can certify that a good faith effort to get responses has been made.)

SPAN recommends that a reporting Company be permitted to rely on information directly received from a supplier of a product or product component and that the reporting company can reasonably assume in good faith that if no response has been provided within 30 calendar days of the date the inquiry was received by the supplier, the reporting company can assume no response will be provided.

SPAN appreciates the opportunity to provide input on the implementation of Minnesota’s PFAS-in-products law and remains committed to collaborating with the MPCA and other stakeholders to ensure that the reporting rules are both effective in protecting public health and the environment while recognizing PFAS compounds' essential role in modern technologies and contributions to society.