Administrative Law Judge Disapproves Minnesota Pollution Control Agency’s Proposed PFAS Reporting and Fees Regulations

The administrative law judge charged with reviewing the Minnesota Pollution Control Agency’s (MPCA) proposed intentionally added per- or polyfluoroalkyl substances (PFAS) product reporting and fee rules has disapproved those rules on procedural and substantive grounds in a Report issued August 28, 2025. MPCA must now address the identified deficiencies before it can adopt and implement those rules in advance of a mid-2026 reporting deadline for relevant manufacturers.

Background

Minn. Stat. § 116.943, subd. 9, empowers MPCA to adopt rules that govern, among other things, the requirement under subdivision 2 that manufacturers that sell, offer for sale or distribute products with intentionally added PFAS in Minnesota provide MPCA with certain information on those products by January 1, 2026, and to impose fees to cover MPCA’s implementation costs. (MPCA recently used its statutory authority to extend this deadline to July 1, 2026. See “MPCA Extends PFAS Product Reporting Deadline by Six Months.”)  MPCA issued its proposed reporting and fees rules on April 21, 2025, and Administrative Law Judge Jim Mortenson presided over the hearing on the proposed rules on May 22, 2025. (See Fredrikson’s previous summaries of the proposed rules, the hearing on the rules and MPCA’s responses to comments.) The post-hearing comment period ended on June 30, 2025, and Judge Mortenson issued his Report on August 28, 2025, after granting himself an additional 30 days to do so.

ALJ’s Report: Identified Deficiencies and Suggested Improvements

Judge Mortenson first disapproved the entire set of rules on procedural grounds; specifically, MPCA’s failure to thoroughly assess “what effect Minnesota’s PFAS reporting requirements will have on businesses in relation to the federal reporting requirements” such as those under the Toxic Substances Control Act (TSCA). He concluded this failure to assess the rules’ cumulative effects failed the standards of review under Minn. Stat. § 14.05, subd. 1, and Minn. R. 1400.2100(A) and MPCA’s proposed rules “cannot be approved” until it completes that analysis. The Report noted additional procedural anomalies but deemed them “harmless errors” that would not prohibit approval of the rules.

From there, Judge Mortenson found several individual rules to be substantively deficient “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.” They included:

• Minn. R. 7026.0010, subp. 14 (definition of “manufacturer”): MPCA’s definition differs from the unambiguous statutory definition and was disapproved because it is “improper for [MPCA] to create its own definition of a word already clearly defined by the legislature.”
• Minn. R. 7026.0040 (updates following the initial report): Aspects of this rule regarding annual recertifications and “voluntary updates” are in “violation of rule-making standards” because they lack clear statutory underpinnings.
• Minn. R. 7026.0050 (reporting waivers): This rule fails to address “how the statutory waivers for agricultural products will operate or be obtained.” The rule also exceeds MPCA’s statutory authority because it circumscribes the conditions under which a manufacturer can avoid the need to report “publicly available information” to MPCA.
• Minn. R. 7026.0090 (products exempt from reporting requirements): Item D of this rule exempting “a product reported to the [Minnesota] Department of Agriculture . . . is misleading (and therefore conflicts with the authorizing statute)” because it suggests this information need not be reported at all, when it must still be reported to the Department of Agriculture.
• Minn. R. 7026.0100 (fees): This rule “exceeds, conflicts with, and does not comply with” the part of the statute that authorizes MPCA to charge fees to cover MPCA’s “reasonable costs” of implementing the reporting program. Specifically, the Statement of Need and Reasonableness estimated it will cost MPCA just over $6 million to implement the underlying statute over nine years. By comparison, the proposed reporting fees in the rule ($1,000 per manufacturer for the initial report; $500 each for annual recertifications) multiplied by the estimated number of reporting manufacturers (5,000 – 10,000) would generate between $22.5 million and $45 million, well in excess of the “reasonable costs” the statute allows MPCA to recoup.

Finally, Judge Mortenson recommended clarifications to the definitions of “brief description of the product” and “substantially equivalent information” under Minn. R. 7026.0010, subps. 4 and 19, respectively, without finding those definitions violated the applicable standards of review.

Next steps

Judge Mortenson’s Report has now been referred to the Chief Administrative Law Judge for the Minnesota Office of Administrative Hearings (OAH) for approval, pursuant to Minn. Stat. § 14.15, subd. 3. The MPCA may not adopt its rules until the Chief ALJ determines identified defects have been corrected or, if applicable, MPCA has satisfied the process for adopting a substantially different rule. What remains to be seen is whether this setback will necessitate yet another extension of the reporting deadline beyond its already-extended July 1, 2026, deadline.

Fredrikson’s Environmental Law team will continue to monitor and report on developments related to the new PFAS requirements and stands ready to assist existing and new clients in navigating this new regulatory environment or with any of their environmental law needs.